624 ill. 33 north eastern reporter, 3d series

624 Ill. 33 NORTH EASTERN REPORTER, 3d SERIES

Ill.2d at 419, 307 Ill.Dec. 626, 860 N.E.2d280.

¶ 45 D. Illusory Coverage

¶ 46 Defendants also assert that the trialcourt’s holding renders the coverage illuso-ry. However, that is not the case, wherethe malicious prosecution did not takeplace during the policy periods. If thecharges had been filed during a policyperiod and they were later determined tobe the result of malicious prosecution,plaintiff would be required to provide cov-erage.

¶ 47 E. Premature Ruling

[12] ¶ 48 Defendants argue that thetrial court’s ruling was premature becauseit could result in inconsistent opinions fromdifferent courts concerning coverage inthis case. The City argues that therecould be inconsistent rulings on the trig-gering issue, leaving the City without cov-erage for Rivera’s claims. However, plain-tiff is correct that an insurance companythat has doubts about whether it has aduty to defend has the option to defendunder a reservation of rights or to file adeclaratory judgment action. Plaintiff waswell within its rights and, in fact, wasprudent in seeking a resolution of thisissue in a declaratory judgment.

¶ 49 III. CONCLUSION

¶ 50 For the preceding reasons, we con-clude that Rivera’s malicious-prosecutionclaim did not trigger coverage under theinsurance policies that plaintiff issued tothe City, because the prosecution was com-menced before the inception of the policies.Coverage for Rivera’s other allegationsalso was not triggered under the policies,and the policies do not provide illusorycoverage. Finally, the trial court’s rulingin this case was not premature. Accord-ingly, we affirm the order of the circuit

court of Lake County granting plaintiff’smotion for judgment on the pleadings.

¶ 51 Affirmed.

Justices ZENOFF and SPENCEconcurred in the judgment and opinion.

,

2015 IL App (1st) 131122

392 Ill.Dec. 823

Koni JOHNSON, Plaintiff–Appellant,

v.

Christine Pabin BISHOF, M.D., Individ-ually and as an Agent and/or Employ-ee of Cook County, d/b/a John H. Stro-ger, Jr., Hospital; Cook County, d/b/aJohn H. Stroger, Jr., Hospital, by andThrough its Agent and/or Employee,Christine Pabin Bishof, M.D.; Jona-than Bankoff, M.D., Individually andas an Agent and/or Employee of CookCounty, d/b/a John H. Stroger, Jr.,Hospital; and Cook County, d/b/aJohn H. Stroger, Jr., Hospital, by andThrough its Agent and/or Employee,Defendants–Appellees.

No. 1–13–1122.

Appellate Court of Illinois,First District, Fifth Division.

March 13, 2015.

Rehearing Denied June 22, 2015.

Modified upon Denial of RehearingJune 26, 2015.

Background: Patient filed action againstemergency room physicians and countyhospital, alleging negligence, negligent in-fliction of emotional distress, and violationof the Emergency Medical Treatment andActive Labor Act (EMTALA), stemming

625Ill.JOHNSON v. BISHOFCite as 33 N.E.3d 624 (Ill.App. 1 Dist. 2015)

from physicians’ failure to diagnose pa-tient’s spinal cord injury and misdiagnosisand treatment of muscle spasm and backor buttock contusion. The Circuit Court,Cook County, Kathy M. Flanagan, J., 2013WL 10215472, granted physicians and hos-pital summary judgment. Patient appealed.Holdings: The Appellate Court, Palmer,P.J., held that:(1) hospital and physicians were immune

from negligence claims under Tort Im-munity Act;

(2) physicians did not have duty to believepatient or accept sincerity of her com-plaints;

(3) EMTALA applied to hospital;(4) hospital provided patient with appro-

priate medical screening examination;and

(5) hospital did not violate EMTALA whenit failed to stabilize patient’s spinalcord injury prior to discharge.

Affirmed; rehearing denied.

1. Judgment O178Purpose of summary judgment is not

to try a question of fact but to determinewhether one exists or whether reasonablepeople could draw different inferencesfrom undisputed facts. S.H.A. 735 ILCS5/2–1005.

2. Municipal Corporations O723Provision of Local Governmental and

Governmental Employees Tort ImmunityAct providing immunity from liability tolocal public entity and its employees forinjury resulting from diagnosing or failingto diagnose person afflicted with illness isnot meant to grant blanket immunity fornegligent treatment of a specific medicalcondition. S.H.A. 745 ILCS 10/6–106.

3. Health O770County hospital and its emergency

room physicians were immune from liabili-ty in patient’s negligence action under

Tort Immunity Act, since alleged negli-gence was based on physicians’ failure toperform adequate medical examinations ortesting, which lead to failure to diagnosepatient’s spinal cord injury, rather thanphysicians’ treatment of patient; patient’sclaims pertaining to negligent treatmentwere directed to physicians’ impropertreatment of her spinal cord injury, butphysicians consistently misdiagnosed pa-tient’s symptoms as muscle spasm andback or buttock contusion, and treatmentwas not inadequate or negligent for musclespasm or contusion injury. S.H.A. 745ILCS 10/6–105, 10/6–106.

4. Municipal Corporations O723‘‘Misdiagnosis’’ is a wrong or mistaken

diagnosis for which local public entity andits employees are immune from liabilityunder provision of Local Governmentaland Governmental Employees Tort Immu-nity Act providing immunity from liabilityfor injury resulting from diagnosing orfailing to diagnose person afflicted withillness. S.H.A. 745 ILCS 10/6–106.

See publication Words and Phras-es for other judicial constructionsand definitions.

5. Damages O57.14General-negligence approach applies

to claim of negligent infliction of emotionaldistress raised by direct victim of defen-dant’s negligence.

6. Damages O57.14For direct victim of defendant’s negli-

gence to state a claim for negligent inflic-tion of emotional distress, victim must al-lege that: (1) defendant owed victim aduty; (2) defendant breached that duty;and (3) injury was proximately caused bythat breach.

7. Damages O57.14In resolving whether a duty should be

imposed on defendant in negligent inflic-tion of emotional distress claim, court must


determine whether there is a relationshipbetween parties requiring that legal obli-gation be imposed upon one for the benefitof the other, taking into consideration fac-tors including reasonable foreseeability ofinjury, likelihood of such injury, magnitudeof guarding against injury, and conse-quences of placing that burden on defen-dant.

8. Damages O57.14

If direct victim of defendant’s negli-gence has not alleged facts sufficient toimpose a duty on defendants, she hasfailed to state a claim for negligent inflic-tion of emotional distress and her actionshould be dismissed.

9. Damages O57.14

Unless a duty is owed, there is nonegligence, and plaintiffs cannot recoveron claim for negligent infliction of emotion-al distress as a matter of law.

10. Damages O57.18

Emergency room physicians did nothave duty to believe patient contrary totheir own medical judgment and experi-ence or to accept without question thesincerity of patient’s complaints regardingher back pain, as required to sustain pa-tient’s claim for negligent infliction ofemotional distress based on allegation thatbecause physicians did not believe hermedical complaints, patient suffered se-vere mental and emotional anguish; therewas no legal authority imposing such aduty on physicians, and negative effect ofimposing such a duty on medical profes-sion would have vastly outweighed remotepossibility that patient would suffer emo-tional distress if duty was not imposed.

11. Health O618

Law imposes on a physician the dutyto exercise due care in attending to needsof his or her patient.

12. Health O657Where emergency room services are

offered, a certain level of health care isrequired to be provided to every personwho seeks treatment there. EmergencyMedical Treatment and Active Labor Act,§ 1867, 42 U.S.C.A. § 1395dd; S.H.A. 210ILCS 70/1, 80/1.

13. Health O107 States O18.15

Emergency Medical Treatment andActive Labor Act (EMTALA) applied tocounty hospital in patient’s claim that hos-pital failed to stabilize patient’s spinal cordinjury prior to discharge and to providepatient with adequate screening in viola-tion of EMTALA, despite contention thathospital was immune under Local Govern-mental and Governmental Employees TortLiability Act because it was being sued asa local public entity and operated publicmedical facility; by immunizing public hos-pitals from liability for failure to screen,examine, treat, or admit patients, Tort Lia-bility Act directly conflicted with EMTA-LA, such that EMTALA preempted TortLiability Act. Emergency Medical Treat-ment and Active Labor Act, § 1867(a, f),42 U.S.C.A. § 1395dd(a, f); S.H.A. 745ILCS 10/6–105, 10/6–106, 10/6–109.

14. Health O258Goal of appropriate medical screening

examination under EMTALA is to deter-mine whether patient with acute or severesymptoms has life threatening or seriousmedical condition. Emergency MedicalTreatment and Active Labor Act,§ 1867(a), (e)(1)(A), 42 U.S.C.A.§ 1395dd(a), (e)(1)(A).

15. Health O258EMTALA essentially requires that

hospital develop screening procedure de-signed to identify critical conditions thatexist in symptomatic patients and to applythat screening procedure uniformly to all


patients with similar complaints. Emer-gency Medical Treatment and Active La-bor Act, § 1867(e)(1)(A), 42 U.S.C.A.§ 1395dd(e)(1)(A).

16. Health O658Although hospital may have one gen-

eral screening procedure for all patients, itmay tailor that procedure to each patient’scomplaints or symptoms, and such varyingscreening procedures would not impose lia-bility under EMTALA as long as all pa-tients complaining of the same problem orexhibiting the same symptoms receiveidentical screening procedures. Emergen-cy Medical Treatment and Active LaborAct, § 1867(a), (e)(1)(A), 42 U.S.C.A.§ 1395dd(a), (e)(1)(A).

17. Health O658EMTALA does not guarantee that the

emergency personnel will correctly diag-nose patient’s condition as result of screen-ing to determine whether an emergencymedical condition exists. EmergencyMedical Treatment and Active Labor Act,§ 1867(a), (e)(1)(A), 42 U.S.C.A.§ 1395dd(a), (e)(1)(A).

18. Health O658EMTALA is not a federal malpractice

statute; it was intended to address patientdumping and guarantee that all patientsreceive adequate first response to a medi-cal crisis and ensure that each is accordedthe same level of treatment regularly pro-vided to patients in similar medical circum-stances, not to guarantee that they will becorrectly diagnosed or even to ensure thatthey receive adequate care. EmergencyMedical Treatment and Active Labor Act,§ 1867, 42 U.S.C.A. § 1395dd.

19. Health O258What constitutes an appropriate

screening under EMTALA is properly de-termined not by reference to particularoutcomes, but instead by reference to hos-pital’s standard screening procedures.Emergency Medical Treatment and Active

Labor Act, § 1867(a), 42 U.S.C.A.§ 1395dd(a).

20. Health O258

Hospital provides ‘‘appropriate medi-cal screening’’ under EMTALA when itfollows its standard emergency roomscreening procedures, applying its stan-dard procedure uniformly to all patients insimilar medical circumstances. Emergen-cy Medical Treatment and Active LaborAct, § 1867(a), 42 U.S.C.A. § 1395dd(a).

21. Health O258

Although hospital violates EMTALA’srequirement that hospital provide patientwith appropriate medical screening when itdoes not follow its own standard policies,mere de minimus variations or slight devi-ation from hospital’s standard proceduresdo not amount to a violation of hospitalpolicy. Emergency Medical Treatmentand Active Labor Act, § 1867(a), 42U.S.C.A. § 1395dd(a).

22. Health O658

County hospital provided patient withappropriate medical screening examinationfor her back pain under EMTALA, sincehospital complied with its own standardscreening procedure and did not treat pa-tient any differently from similarly situat-ed patients; emergency room physiciantestified that he usually performed neuro-logical examination, including sensory eval-uation, on patients presenting with samecomplaints, signs, and symptoms as patientand that he performed examination on pa-tient, and hospital complied with its EM-TALA policy by engaging in medicalscreening process until it ruled out patientwas suffering from emergency medicalcondition. Emergency Medical Treatmentand Active Labor Act, § 1867(a), (e)(1)(A),42 U.S.C.A. § 1395dd(a), (e)(1)(A).


23. Health O258EMTALA’s requirement for an appro-

priate medical screening examination isnot designed to redress an incorrect diag-nosis by hospital; instead, it is merely anentitlement to receive the same treatmentthat is accorded to others similarly situat-ed. Emergency Medical Treatment andActive Labor Act, § 1867(a), 42 U.S.C.A.§ 1395dd(a).

24. Health O658Questions regarding whether hospital

personnel properly diagnosed or treatedpatients are to be resolved under statenegligence and medical malpractice theo-ries of recovery, not EMTALA. Emer-gency Medical Treatment and Active La-bor Act, § 1867, 42 U.S.C.A. § 1395dd.

25. Health O658County hospital did not violate EM-

TALA when it failed to stabilize patient’sspinal cord injury prior to discharge, sincehospital did not have actual knowledgethat patient had an emergency medicalcondition at the time it discharged her.Emergency Medical Treatment and ActiveLabor Act, § 1867(b)(1), (c), 42 U.S.C.A.§ 1395dd(b)(1), (c).

26. Health O258Requirement under EMTALA that

hospital stabilize patient prior to transferor discharge is triggered only after hospi-tal determines that an individual has anemergency medical condition. EmergencyMedical Treatment and Active Labor Act,§ 1867(b)(1), (c), 42 U.S.C.A.§ 1395dd(b)(1), (c).

27. Health O258Unless hospital actually determines

that patient suffers from an emergencymedical condition, EMTALA requirementthat hospital stabilize patient prior to dis-charge or transfer does not apply. Emer-gency Medical Treatment and Active La-bor Act, § 1867(b)(1), (c), 42 U.S.C.A.§ 1395dd(b)(1), (c).

28. Health O658Analysis by hindsight is not sufficient

to impose liability under EMTALA.Emergency Medical Treatment and ActiveLabor Act, § 1867, 42 U.S.C.A. § 1395dd.

Power Rogers & Smith, P.C., of Chicago(Joseph A. Power, Jr., and Carolyn DaleyScott, of counsel), for appellant.

Anita M. Alvarez, State’s Attorney, ofChicago (Patrick T. Driscoll, Jr., JeffreyMcCutchan, and Sandra J. Weber, Assis-tant State’s Attorneys, of counsel), for ap-pellees.

OPINION

Presiding Justice PALMER deliveredthe judgment of the court with opinion.

¶ 1 Plaintiff Koni Johnson filed an actionagainst defendants Christine Pabin Bishof,M.D., Jonathan Bankoff, M.D., and theCounty of Cook, doing business as John H.Stroger, Jr., Hospital (the county) allegingnegligence, negligent infliction of emotion-al distress and violation of the EmergencyMedical Treatment and Active Labor Act(EMTALA) (42 U.S.C. § 1395dd (2012)) indefendants’ diagnosis and treatment of herin the emergency room of John H. Stro-ger, Jr., Hospital (Stroger Hospital). Thecourt entered summary judgment for de-fendants on all counts asserted againstthem in plaintiff’s fifth amended complaint.On appeal, plaintiff argues the court erredin granting summary judgment on (1)counts I and III, as defendants are notimmune from liability under sections 6–105and 6–106 of the Local Governmental andGovernmental Employees Tort ImmunityAct (745 ILCS 10/6–105, 6–106 (West2012)) (Tort Immunity Act) for their negli-gence in failing to appropriately treat her,(2) counts II and IV, as defendants are not

U0010783

Highlight


immune from liability under the Tort Im-munity Act for their negligent infliction ofemotional distress on her and (3) count V,as questions of fact exist regarding wheth-er she was given a medical screening ex-amination within defendants’ capability toprovide and was stabilized before beingdischarged from the emergency room asrequired by EMTALA. We affirm.

¶ 2 BACKGROUND¶ 3 This appeal concerns the trial court’s

grant of summary judgment to defendantson plaintiff’s fifth amended complaintsounding in medical negligence, negligentinfliction of emotional distress and viola-tion of EMTALA.1 Plaintiff filed the com-plaint in September 2009, directing countsI through V at defendants and counts VIthrough VIII at four codefendants. Onlythe five counts directed at defendants areat issue here.

¶ 4 In the complaint, plaintiff stated thatshe presented to the emergency room atStroger Hospital, a hospital owned andoperated by the county, on or about March4, 2007, complaining of back spasms,numbness in her right lower extremity,cramping in her right thigh and severepain in her back. Plaintiff had slipped onice the previous day. She did not havemedical insurance. Plaintiff alleged shewas seen by Drs. Bishof and Bankoff,emergency room physicians at the hospitaland agents and/or employees of the coun-

ty. She asserted she complained to Drs.Bishof and Bankoff that her leg was numb,it felt like her leg was getting weak andshe could not move her toes. Before beingdischarged from the emergency room, sheclaimed she could not walk. She allegedthat Drs. Bishof and Bankoff ‘‘did not per-form a proper initial medical screeningexamination’’ on her, ‘‘ordered a Compu-terized Axial Tomography (CAT scan) onlyupon [her] insistence’’ and ‘‘failed to screenand treat [her] for a spinal cord injury.’’Plaintiff claimed Drs. Bishof and Bankoffaccused her ‘‘of faking her injuries’’ anddischarged her with Valium and a diagno-sis of muscle spasm and did not give herany follow-up information or instructionsupon discharge. She asserted that Drs.Bishof and Bankoff ‘‘had the duty to pos-sess and apply the knowledge and use theskill of a reasonable well qualified emer-gency room physician under the same orsimilar circumstances.’’ Plaintiff also stat-ed that, on March 5, 2007, she presented tothe emergency room at Lincoln Park Hos-pital, from which she was discharged witha diagnosis of ‘‘numbness, possibly ficti-tious,’’ and she then returned to the emer-gency room at Stroger Hospital, complain-ing of the inability to move her legs. Shewas diagnosed at Stroger Hospital with aspinal cord contusion and paralysis onMarch 6, 2007.

1. ‘‘[S]ection 1867 of the Social Security Act,codified at 42 U.S.C. § 1395dd [is] betterknown as the Emergency Medical Treatmentand Active Labor Act (EMTALA).’’ Arellanov. Department of Human Services, 402 Ill.App.3d 665, 675, 348 Ill.Dec. 23, 943 N.E.2d631 (2010). A ‘‘limited ‘anti-dumping’ stat-ute,’’ EMTALA’s ‘‘ ‘core purpose is to get pa-tients into the system who might otherwise gountreated and be left without a remedy be-cause traditional medical malpractice law af-fords no claim for failure to treat.’ ’’ Jinkinsv. Evangelical Hospitals Corp., 336 Ill.App.3d377, 385, 270 Ill.Dec. 548, 783 N.E.2d 123(2002) (quoting Bryan v. Rectors & Visitors ofthe University of Virginia, 95 F.3d 349, 351

(4th Cir.1996)). To that end, EMTALA pro-vides that any individual who comes to ahospital’s emergency department requestingan examination or treatment for a medicalcondition must be provided ‘‘an appropriatemedical screening examination within the ca-pability of the hospital’s emergency depart-ment, including ancillary services routinelyavailable to the emergency department, todetermine whether or not an emergency med-ical condition * * * exists.’’ 42 U.S.C.§ 1395dd(a) (2012). If an emergency medi-cal condition exists, then the hospital muststabilize the patient prior to transfer or dis-charge. 42 U.S.C. § 1395dd(b) (2012).


¶ 5 In counts I and III of plaintiff’s fifthamended complaint, she asserted negli-gence claims against defendants. Sheclaimed she suffered permanent injuriesand lost earnings as a proximate result ofdefendants’ negligent failure to do one ormore of the following: ‘‘(1) properly per-form an initial medical screening examina-tion; (2) properly screen her for her signsand symptoms; (3) properly treat her forher signs and symptoms; (4) properlytreat her for a spinal cord injury; (5)properly consult with a neurologist or neu-rosurgeon for her signs and symptoms; or(6) refer her to a neurologist or neurosur-geon for treatment of her signs and symp-toms.’’ 2

¶ 6 In counts II and IV, plaintiff assert-ed negligent infliction of emotional distressagainst defendants, alleging the same neg-ligent acts and omissions as set forth inher negligence counts. She claimed shesuffered and will continue to suffer perma-nent injuries, lost earnings and ‘‘severemental and emotional anguish due to herinjuries’’ as a proximate result of one ormore of the negligent acts or omissions.

¶ 7 In count V, plaintiff asserted thecounty ‘‘had a duty to provide for an ap-propriate medical screening for [her] with-in the capability of [Stroger Hospital’s]emergency department, including ancillaryservices routinely available to the emer-gency department, to determine whetheror not an emergency medical condition ex-

isted’’ and that it failed to provide her withan appropriate medical screening examina-tion within the capability of the hospital’semergency department. She asserted thecounty was negligent in failing to (1) prop-erly perform an appropriate medicalscreening examination pursuant to EMTA-LA or (2) properly stabilize, treat, andrefer her to a neurologist or neurosurgeonin violation of EMTALA. Plaintiff soughtdamages for the permanent injuries shesuffered as a proximate result of thesenegligent acts or omissions and for thesevere mental and emotional anguish sheallegedly suffered and will continue to suf-fer due to those injuries.

¶ 8 Defendants answered, denying theallegations. They filed affirmative defens-es, asserting that, as a ‘‘local public entity’’and employees of that public entity actingwithin the scope of their employment, theywere immune from liability for any injurywhich may have been caused to plaintiff bytheir failure to diagnose or treat her condi-tion pursuant to sections 6–105 and 6–106(a) of the Tort Immunity Act (745ILCS 10/6–105, 6–106(a) (West 2012)).3

The parties then conducted extensive dis-covery.

¶ 9 In plaintiff’s discovery deposition,she testified that she slipped on a patch ofice on March 3, 2007, and fell flat on herback. The next day, she went to theemergency room at Stroger Hospital, com-

2. Defendant’s expert witness, neurologistCharles C. Wang, M.D., explained in his dis-covery deposition that ‘‘symptoms’’ are com-plaints of the patient while ‘‘signs’’ are theobjective findings of a medical examination.

3. Section 6–105 provides:

‘‘Neither a local public entity nor a publicemployee acting within the scope of hisemployment is liable for injury caused bythe failure to make a physical or mentalexamination, or to make an adequate physi-cal or mental examination of any person forthe purpose of determining whether such

person has a disease or physical or mentalcondition that would constitute a hazard tothe health or safety of himself or others.’’745 ILCS 10/6–105 (West 2012). Section6–106(a) provides:‘‘(a) Neither a local public entity nor a pub-lic employee acting within the scope of hisemployment is liable for injury resultingfrom diagnosing or failing to diagnose thata person is afflicted with mental or physicalillness or addiction or from failing to pre-scribe for mental or physical illness or ad-diction.’’ 745 ILCS 10/6–106(a) (West2012).


plaining of back spasms, legs tingling andback pain. Dr. Bishof examined her butplaintiff could not recall what examinationsDr. Bishof performed. At some point,plaintiff received intravenous infusions ofValium and morphine for her pain and twoX-rays were taken of her back. Plaintiffwas then examined by Dr. Bankoff.

¶ 10 Plaintiff testified that Dr. Bankofftold her there was ‘‘nothing wrong’’ withher and she had to ‘‘get out of here.’’ Hestated ‘‘I don’t know that you think you’reup to’’ and told her ‘‘you’re lying, you’refaking.’’ Plaintiff stated that, by this time,many hours after she first arrived in theemergency department, she could not walkbut ‘‘they wouldn’t listen to [her].’’ Plain-tiff testified that Dr. Bankoff ‘‘kept insist-ing’’ that there was nothing wrong withher and that she could stand. He told herto stand and she ‘‘said no, I can’t stand, no,I can’t.’’ He did not believe her when shesaid she could not stand. With plaintiff’sboyfriend on one side and Dr. Bankoff onthe other, they took plaintiff by the armsand stood her up. Dr. Bankoff then toldher boyfriend ‘‘to let go,’’ which he did, andplaintiff collapsed to the ground. Plaintifftestified that the doctor looked at her andtold her ‘‘see how your legs are bent,because they are crossed like this, like sortof funny. He goes, no one does that, youknow, when they just fall, really, you’redoing yoga positions, so you’re lying,you’re doing yoga positions.’’

¶ 11 Plaintiff testified that a CAT scanwas then taken and a ‘‘second male doctor’’told her the results, telling her there wasnothing wrong with her and ‘‘we’re notgoing to do an MRI [magnetic resonanceimaging] because you don’t need one.’’ 4

This second male doctor then dischargedher with instructions ‘‘to see a doctor,

* * * take it easy, take aspirin or some-thing, if conditions get worse come back,but I couldn’t walk, and they wouldn’tlisten to me, and he kept writing on thepaper that I felt fine.’’ She said, ‘‘I wastold there was nothing wrong with me.The first doctor [Dr. Bankoff] * * * saidthere was absolutely nothing wrong withme and made me stand up and fall on theground, insisting there was nothing wrongwith me. The second doctor kept insistingthere was nothing wrong with me, andthey sent me home saying there was noth-ing wrong with me.’’ 5

¶ 12 Plaintiff testified: ‘‘I didn’t knowwhat to do. I just wanted them to admitme and keep looking, find out what waswrong, believe me, to believe me, and theywouldn’t believe me, and their treatment ofme then too, and, yes, they did not gofurther with their tests that they couldhave performed.’’ She stated she kepttelling the doctors that she wanted them‘‘to go further, is there anything else, be-cause I knew there was something wrong,’’but did not request any specific tests.Plaintiff could not walk by this point andher boyfriend, aided by an orderly, had tolift her into his car. She went home andslept for a few hours. When she woke,she still could not stand, was in severe painand could not urinate.

¶ 13 Plaintiff testified that her boyfriendthen took her to Lincoln Park Hospital,where she was examined by Frederic Fish-man, M.D. Plaintiff stated Dr. Fishmantold her there was nothing wrong with her,told her she had to leave and pushed herin her wheelchair into the waiting roomwhile she was still crying and ‘‘told every-body that [she] was a mental case and toget out of there or he would call the cops.’’

4. This ‘‘second male doctor’’ is not identifiedor named in plaintiff’s complaint.

5. In contradiction to her earlier testimony,she stated that the second male doctor wasthe doctor ‘‘that kept saying I don’t knowwhat you think you’re up to.’’


Later the same day, plaintiff returned toStroger Hospital. On this second visit toStroger Hospital, plaintiff was evaluatedby a neurosurgeon, an MRI was taken ofher back, plaintiff was diagnosed with aspinal injury and she was admitted to thehospital. Plaintiff remained at StrogerHospital for a week before being trans-ferred to Oak Forest Hospital for inpatientrehabilitation.

¶ 14 Asked to explain the emotional dis-tress ‘‘problem’’ she claimed resulted fromher fall and treatment, plaintiff testified:

‘‘I have no self-confidence anymore. Ifeel very much that I have to defendmyself or at least explain myself, sayI’m sorry to anybody, that no one’s go-ing to believe me anyway, that I’m justkind of a phony, people don’t put anytrust or faith in me.’’

She stated she had regularly spoken to apsychologist at Oak Forest Hospital dur-ing her rehabilitation stay there after hertransfer from Stroger Hospital and thisdoctor had told her she needed to continueseeing a psychologist after her discharge.Plaintiff was ‘‘still’’ taking Wellbutrin (ananti-anxiety medication) as prescribed toher by this doctor but was not seeing apsychologist as she could not afford one.She testified that, ‘‘a long time ago,’’ be-fore her fall, she had taken medication fordepression.

¶ 15 The medical record of plaintiff’semergency room visit lists Dr. Bishof asthe primary ‘‘MD/NP.’’ It shows plaintiffwas first ‘‘seen’’ in the emergency roomshortly after 5 p.m. and discharged at 3a.m. the next day. During her stay, shereceived multiple doses of pain killer Tora-dol, of Valium and of morphine. Dr. Bish-of ordered two X-rays of plaintiff’s spine,taken five hours apart. The X-raysshowed ‘‘vertebral body and disc heightand alignment are preserved * * * [and]no definite fracture’’ and ‘‘bony contoursand joint spaces are seen to be within

normal limits.’’ The CAT scan ordered byDr. Bishof showed ‘‘no acute fracture ordislocation,’’ ‘‘vertebral body heights andintervertebral spaces are preserved’’ and‘‘soft tissues are unremarkable.’’ The dis-charge diagnosis written in the record is‘‘back/buttock contusion s/p RH.’’ The ‘‘in-structions to patient’’ directed plaintiff totake the pain medication Motrin as pre-scribed, follow up with her primary carephysician and ‘‘rest.’’ The chart is signedby Dr. Bishof and Dr. Sergel, Dr. Bishof’sattending physician. An emergency de-partment ‘‘discharge’’ computer recordlists the ‘‘primary discharge diagnosis’’ as‘‘muscle spasm.’’

¶ 16 Dr. Bishof testified in her discoverydeposition that she took a ‘‘complete histo-ry and physical’’ of plaintiff. She per-formed ‘‘a complete head-to-toe exam’’ ofplaintiff, determining that plaintiff’s neuro-logical exam was ‘‘intact, plaintiff had nopoint tenderness over her back or bruisingand had full range of motion at her hips,knees and ankles on her own and with Dr.Bishof ‘‘passively ranging her through mo-tion.’’ Dr. Bishof found plaintiff ‘‘hadsome tense paraspinal muscles in her lowback’’ and seemed to be spasming in painbut her cranial nerves were intact, hertendon reflexes were normal, there wasnormal sensation in all four of her extremi-ties and complete and full strength in allher extremities, and there were no signs ofupper motor neuron problems.

¶ 17 Dr. Bishof testified that, after herphysical examination of plaintiff, she or-dered that plaintiff receive an anti-inflam-matory and pain medication to help withher muscle spasms, Valium and, whenplaintiff complained of pain, morphine.Dr. Bishof reassessed plaintiff several dif-ferent times. When plaintiff complainedthat her right leg was getting weak, Dr.Bishof reassessed her but found ‘‘a normalexam.’’ As a matter of practice, she would


have rechecked plaintiff’s ‘‘deep tendon re-flexes,’’ the sensation and strength in herfeet and her ability to move her legs. Dr.Bishof ‘‘did not find any physical objectivefindings’’ on her reexamination but, asplaintiff was complaining of new symp-toms, Dr. Bishof ordered a CAT scan ofplaintiff’s spine. Dr. Bishof’s shift thenended and she did not see plaintiff again.

¶ 18 Dr. Bishof testified that her initialimpression of plaintiff’s symptoms was‘‘muscle spasm with possible contusion toher back from the fall,’’ which was consis-tent with the symptoms of which plaintiffcomplained. Dr. Bishof remembered,however, that plaintiff ‘‘had some objectivefindings which were not consistent withthe subjective findings [plaintiff’s com-plaints].’’ Specifically, she rememberedthat plaintiff was complaining of numbnessbut ‘‘had a normal neurological exam, nor-mal sensation and proprioception’’ and thatshe was moving around ‘‘so much’’ on thegurney, which Dr. Bishof considered incon-sistent with being in pain. Dr. Bishof’simpression was that plaintiff ‘‘had musclespasm’’ causing her pain, numbness andcramping. Dr. Bishof noted that, at times,when she looked into plaintiff’s cubiclewhile passing by, plaintiff appeared verycomfortable and relaxed on the gurneybut, ‘‘at other times when you would stepinto the room, she was writhing around onthe cart.’’ It was Dr. Bishof’s impressionthat plaintiff seemed relaxed and comfort-able when Dr. Bishof was not in the room.

¶ 19 Dr. Bishof stated her opinion that,at the time she saw plaintiff, plaintiff hadnot suffered any permanent injury to herspinal cord and was neurologically intact.Overall, based on all of plaintiff’s com-plaints, it was Dr. Bishof’s ‘‘impressionthat [plaintiff] had muscle spasm.’’ Dr.Bishof came to a differential diagnosis thatplaintiff had ‘‘contused a bone * * *bruised a bone’’ and, when plaintiff’s symp-toms escalated, ordered a CAT scan ‘‘to

rule out any bony injury that may have notbeen picked up on the plain films.’’ Sheremembered that she did not call in aneurologic consult because she and herattending physician, to whom she had con-veyed plaintiff’s history, the results of herphysical exam of plaintiff and her impres-sion regarding plaintiff’s condition, did notthink it was indicated. She would alsohave spoken to her attending physicianabout ‘‘the plan for evaluation and treat-ment.’’

¶ 20 Dr. Bishof’s shift ended at midnightand her chief resident, Dr. Bankoff, tookover plaintiff’s care. The last Dr. Bishofknew, plaintiff was being sent for a CATscan. She did not discharge plaintiff andwas not the one who wrote the ‘‘dischargediagnosis’’ into plaintiff’s medical record.Dr. Bishof stated it was her custom andpractice to give an oral report to the doc-tor taking over a patient’s care but she didnot specifically remember giving Dr. Ban-koff an oral report on plaintiff. Dr. Bishofasserted she did not believe plaintiff was‘‘faking her injuries’’ and she had neveraccused plaintiff of doing so.

¶ 21 Dr. Bankoff testified in his discov-ery deposition that he did not rememberplaintiff and had no recollection of anyconversation with her but her medical rec-ords showed he examined her in the Stro-ger Hospital emergency department in theearly morning on March 5, 2007. He as-sumed he received the customary briefingon this patient from the ‘‘off-going’’ teamof residents at the change of their shift buthe could not specifically recall the briefinghe received on that shift. From the medi-cal records, he knew he attended to hertwice, gave her a prescription for Motrinand, although he documented that she‘‘had subjective back pain with numbnessand [was] unable to walk subjectively,’’ his‘‘normal neurologic exam’’ did not objec-tively find numbness. He did not remem-


ber performing the exam or what it hadentailed. He did not know whether heasked plaintiff to stand or walk and wheth-er she complied. As was his custom andpractice, he would have written plaintiff’sdischarge order and clarified any dis-charge instructions with her but anotherdoctor would ‘‘actually’’ discharge her. Heknew from the medical record that a CATscan of plaintiff was ‘‘negative’’ but did notknow who wrote this note in the record.Although the medical record stated plain-tiff’s ‘‘primary discharge diagnosis’’ asmuscle spasm, Dr. Bankoff stated it wasnot his diagnosis. He did not rememberplaintiff at all, had no recollection of any-thing other than what he had written inthe medical record and had no memory ofasking plaintiff to stand or of accusing herof faking her injury.

¶ 22 Plaintiff’s expert witness, emergen-cy room physician Kenneth A. Corre,M.D., testified in his deposition that thecounty/Stroger Hospital violated EMTA-LA. He stated the basis for his opinionswas ‘‘[t]hat the patient presented to Stro-ger Hospital did not have an appropriateor complete medical screening exam, [and]that she, in fact, did have an emergencymedical condition [a ‘spinal cord contusionwith neurologic findings’] which was notassessed nor treated or dispositioned ap-propriately.’’ Dr. Corre opined that plain-tiff did not receive a ‘‘complete medicalscreening’’ or ‘‘subsequent appropriatetesting or diagnosis’’ and ‘‘should havebeen hospitalized and received immediateconsultation [by a spine specialist, neuro-surgeon or neurologist] and treatment thatwould have been part of that hospitaliza-tion.’’ He stated plaintiff should havebeen immediately immobilized with herspine stabilized and should have received‘‘high-dose steroids.’’

¶ 23 Dr. Corre stated that, when plain-tiff presented to Stroger Hospital onMarch 4, 2007, the emergency medical

screening examination required a com-plete and detailed history, a completeand detailed physical exam, imagingwhich included an MRI of the spine,‘‘stat’’ consultation with a spine specialist,immobilization and stabilization of thespine, intravenous high-dose steroids,hospitalization of plaintiff as opposed toher being discharged home and ‘‘the di-agnosis of spinal injury, in particular spi-nal cord contusion, be made.’’ It was hisopinion that Dr. Bishof’s initial medicalscreening, including her failure to sched-ule an MRI, and physical examination ofplaintiff were inadequate and below thestandard of care as plaintiff presentedwith an obvious spinal cord injury thatshould have been diagnosed by Dr. Bish-of as an emergency medical condition re-quiring immobilization, an MRI, consulta-tion with a spine specialist and hospitaladmission. Instead, as a result of Dr.Bishof’s inadequate examination and test-ing, she diagnosed plaintiff with a musclespasm, which diagnosis was accepted byDr. Bankoff after he received the resultsof a CAT scan on plaintiff and led toplaintiff’s discharge from the hospitalwith after-care instructions appropriatefor a muscle spasm. Dr. Corre statedthe after-care instructions were ‘‘abso-lutely not’’ the appropriate instructionsfor treatment of plaintiff’s spinal cord in-jury. He asserted that her type of spi-nal cord injury presented an emergencymedical condition and would not have ne-cessitated after-care instructions giventhat, ‘‘by standard of care and EMTA-LA,’’ she would have been ‘‘admitted,treated, immobilized, et cetera.’’ Dr.Corre asserted that the instructionsplaintiff received were related ‘‘to the di-agnosis of back or buttock contusiononly’’ and, if given for something moresevere such as a spinal cord contusion orinjury, were ‘‘woefully inadequate andsubstandard.’’ Dr. Corre stated that,


taking together plaintiff’s complaints, themechanism of her injury, the results ofthe physical examination and the failureto carry out ‘‘a complete and standardexam,’’ ‘‘they clearly did not take this pa-tient seriously, and I believe that theyalso clearly violated patient safety.’’

¶ 24 Plaintiff’s other expert witness,neurologist Adrian Richard MainwaringUpton, M.D., stated that, based on hisreview of plaintiff’s medical records andhis examination of plaintiff, she had suf-fered a contusion of the spinal cord as aresult of her fall. After discussing plain-tiff’s signs and symptoms, Dr. Upton stat-ed he did not know how Dr. Bishof ‘‘couldeven begin to suggest’’ that plaintiff’snumbness was due to muscle spasm andfound this to be ‘‘quite frankly nonsense.’’Dr. Upton opined that Dr. Bishof did notperform a thorough screening evaluationto determine whether or not a spinal cordinjury existed and she should have made aprobable diagnosis of spinal cord injuryand treated plaintiff for such. He felt thatthe combination of Dr. Bishof’s failure toorder an MRI, failure to request a neuro-logical opinion, failure to administer thesteroid methyl prednisone and failure toimmobilize plaintiff comprised a deviationfrom the standard of care which aggravat-ed a preexisting condition suffered byplaintiff. Dr. Upton noted that Dr. Bishofdid not write a diagnosis in the record.

¶ 25 Dr. Upton stated his opinion thatDr. Bankoff also deviated from the stan-dard of care as Dr. Bankoff ‘‘was preparedto help discharge the patient when no di-agnosis was made and a probable spinalcord lesion had been missed.’’ He statedDr. Bankoff failed to perform a properscreening evaluation to determine whetherspinal cord injury existed, did not order anMRI and did not consult a neurologist orneurosurgeon. Dr. Upton testified thatDr. Bankoff was the individual who diag-nosed plaintiff with a ‘‘back and buttock

contusion status post-fall.’’ He statedthat, although this was not an incorrectdiagnosis, ‘‘what [Dr. Bankoff] didn’t dowas find out why she had the neurologicalsymptoms which was the spinal cord swell-ing as a result of the fall.’’ Dr. Bankoffshould have gone further and consideredthe possibility that plaintiff had suffered aspinal lesion, not merely a back and but-tock bruising. Dr. Upton stated the after-care instructions given to plaintiff were nottreatment for a spinal cord injury andwould not have been of any benefit toplaintiff in preventing her from progress-ing from bruising to paraplegia. It wasDr. Upton’s opinion that any of the doctorsresponsible for the care and treatment ofplaintiff should have, based on plaintiff’ssigns and symptoms, ‘‘worked her up [ (di-agnosed her) ] for a contused spinal cord,had an MRI done, delivered the steroids,’’as was the standard treatment for spinalcord injuries in general. He found theevidence ‘‘obvious’’ that plaintiff had a con-tused spine and an MRI, although not usedto make a diagnosis, would have confirmedor denied the clinical diagnosis. The pain-killers prescribed for plaintiff upon dis-charge would have eliminated plaintiff’spain and improved her back if she ‘‘only’’had a contused back but her numbnessindicated that it was very unlikely that sheonly had a contused back.

¶ 26 Retired Oak Forest Hospital clinicalpsychologist Malcolm J. Brachman, Jr.,Ph.D., testified that he visited plaintiffonce during her admission to the spinalcord injury rehabilitation unit at Oak For-est Hospital in 2007. Plaintiff’s Oak For-est Hospital medical records showed that,as with any patient admitted to the reha-bilitation unit, plaintiff had received a psy-chological screening. Plaintiff’s medicalrecords showed a staff psychologist diag-nosed plaintiff as suffering from depres-sion and anxiety, a staff psychiatrist foundplaintiff had a history of ‘‘major depressivedisorder with psychosis’’ and ‘‘psychosis


with depression’’ and might possibly sufferfrom ‘‘bipolar disorder,’’ and plaintiff told astaff social worker that she had sufferedfrom depression since the age of 21, formore than 20 years. During plaintiff’sstay at Oak Forest Hospital, a predoctoralpsychology intern conducted six therapysessions with plaintiff. Dr. Brachmanstated that he went to talk to plaintiffonce, after she had expressed suicidal idea-tion to her therapist. Dr. Brachmanopined that, based on his general under-standing of rehabilitation patients and giv-en plaintiff’s prior history of depression or‘‘mental condition,’’ her ‘‘traumatic injury’’‘‘probably exacerbated’’ her existing men-tal condition.

¶ 27 Defendant’s expert witness, neurol-ogist Charles C. Wang, M.D., testified insome detail regarding plaintiff’s signs andsymptoms and opined Dr. Bishof did ‘‘acomplete head-to-toe,’’ ‘‘pretty thorough’’examination involving ‘‘neuro’’ and ‘‘deeptendon reflexes.’’ He considered it ‘‘prettygood for an emergency physician in termsof neurologic examination.’’ He stated Dr.Bishof found a ‘‘normal exam,’’ Dr. Ban-koff’s discharge diagnosis was back/but-tock contusion and the emergency depart-ment’s working diagnosis was musclespasm with possible contusion to plaintiff’sback from the fall. Dr. Wang thought thelikely cause of plaintiff’s complaints wasspinal cord contusion. Regarding plain-tiff’s complaint to Dr. Bankoff that shecould not walk, Dr. Wang stated he wouldexpect a reasonably qualified physician un-der those circumstances to have the pa-tient walk.

¶ 28 In October 2011, defendants movedfor summary judgment on negligencecounts I and III. Pointing out that plain-tiff’s experts testified that Drs. Bishof andBankoff failed to perform diagnostic exam-inations and tests and to diagnose or treata spinal cord injury/spinal cord contusion(SCI/SCC), defendants argued that they

were entitled to judgment as matter of lawunder sections 6–105 and 6–106(a) of theTort Immunity Act. Plaintiff respondedthat defendants were not immune fromliability on counts I and III as her allega-tions were ‘‘primarily rooted’’ in defen-dants’ failure to perform an initial medicalscreening, screen her for her signs andsymptoms, properly treat her for her signsand symptoms and properly consult withor refer her to a neurologist or neurosur-geon, i.e., were rooted in defendants’ negli-gent and inadequate treatment of the inju-ries, signs and symptoms as diagnosed bydefendants for which there was no immu-nity pursuant to sections 6–106(c) and (d)of the Tort Immunity Act.

¶ 29 The court granted defendants’ mo-tion for summary judgment on counts Iand III on January 27, 2012. It found thatdefendants diagnosed plaintiff ‘‘with aback/buttocks contusion and treated herfor the erroneous diagnosis,’’ ‘‘failed to cor-rectly diagnose her spinal cord injury,which required different treatment andwas delayed due to the misdiagnosis’’ and‘‘failed to perform the tests which wouldhave led to the proper diagnosis.’’ Thecourt determined that ‘‘[t]he claim againstthe Defendants here is, in essence, basedon their failure to perform an adequateexamination and their failure to diagnosethe Plaintiff’s spinal cord injury, ratherthan their negligence in treating the spinalcord injury.’’ It found defendants were,therefore, immunized from liability fromthe negligence alleged in counts I and IIIpursuant to sections 6–105 and 6–106 ofthe Tort Immunity Act and summary judg-ment on those counts was warranted.

¶ 30 The county moved for summaryjudgment on the EMTALA count V, as-serting that it was immune from liabilityfor any failure to perform an appropriatemedical screening examination under theTort Immunity Act and that EMTALA didnot preempt the Tort Immunity Act. It


also argued that plaintiff presented no evi-dence to show that any member of theStroger Hospital emergency departmentstaff had determined plaintiff had an emer-gency medical condition or had intended todischarge an unstable patient in violationof EMTALA. In support of its motion,the county presented the deposition of itsexpert emergency medicine physician,Richard M. Feldman, M.D. Although Dr.Feldman agreed that Drs. Bishof and Ban-koff had ‘‘missed the diagnosis’’ of plain-tiff’s spinal cord injury and plaintiff wasnot stabilized when she was discharged‘‘the first time from Stroger Hospital,’’ hefound plaintiff’s ‘‘EMTALA issue’’ was ‘‘anonstarter.’’ He testified:

‘‘There is a well [sic ] beyond the med-ical screening exam for this patient, thefact that there was a diagnosis madethat turned out to be not as severe asthe diagnosis she eventually had, EM-TALA has nothing to do with whetheror not you make the correct diagnosis.It has to do with whether you treat thepatient as you would treat every otherpatient that presents a similar typesymptomography.

Pain medicine, X-rays, observation,more pain medicine, CAT scan is need-ed, disposition accordingly, but in termsof the patient being treated as any otherpatient would be[,] she was for the set ofsymptoms she had. The fact that theydidn’t go further with an MRI has to dowith clinical judgment. Has nothing todo with the desire on the part of thedoctors or institution not to care for thepatient appropriately as they would withevery other patient.’’

Plaintiff responded to the motion, arguingthat EMTALA did preempt the Tort Im-

munity Act and that questions of materialfact existed regarding whether the countyviolated EMTALA and whether, as re-quired by EMTALA, she was given a med-ical screening and ancillary services withinthe capability of Stroger Hospital’s emer-gency department and stabilized beforebeing discharged.

¶ 31 The court granted the county’s mo-tion for summary judgment on July 27,2012. It held that sections 6–105 and 6–106 of the Tort Immunity Act directlyconflict with EMTALA and EMTALAtherefore preempts the Tort Immunity Actsuch that the requirements of EMTALAapply to the county.6 It then held thatthere was no evidence to show that thecounty violated EMTALA at the time ofplaintiff’s emergency room visit to StrogerHospital. The court explained there wasno evidence that the screening plaintiffreceived at Stroger Hospital deviated inany way from the hospital’s own standardscreening procedures or that plaintiff wastreated any differently from other patientsbased on her lack of insurance or inabilityto pay. It, therefore, found no evidence tosupport a violation of EMTALA with re-gard to whether the county performed anappropriate screening examination underthe statute. The court also found that, asplaintiff was not diagnosed with an emer-gency medical condition, Stroger Hospitalhad no duty to provide necessary stabiliz-ing treatment under EMTALA.

¶ 32 Defendants then moved for sum-mary judgment on the negligent inflictionof emotional distress counts II and IVpursuant to section 6–109 of the Tort Im-munity Act (745 ILCS 10/6–109 (West2012)).7 They argued that the gist ofthese claims was that defendants were lia-

6. EMTALA provides that its provisions ‘‘donot preempt any State or local law require-ment, except to the extent that the require-ment directly conflicts with a requirement ofthis section.’’ 42 U.S.C. § 1395dd(f) (2012).

7. Section 6–109 provides that local public en-tities and their employees acting in the scopeof their employment are immune from liabili-ty ‘‘for an injury resulting from the failure toadmit a person to a medical facility operated


ble for failing to admit plaintiff to thehospital and they were immune from fail-ure to admit under section 6–109. Thecourt granted the motion for summaryjudgment on February 1, 2013. It foundsection 6–109 of the Tort Immunity Actwas inapplicable but that defendants wereimmunized from liability on counts II andIV pursuant to sections 6–105 and 6–106 asthese counts were ‘‘not pled’’ as claims fornegligent infliction of emotional distressbut rather were identical to counts I andIII sounding in medical malpractice, add-ing only an allegation of emotional distressas an element of damages. The court heldthat, as the negligent infliction of emotion-al distress counts II and IV stemmed fromthe same failure to adequately examine,test and diagnose plaintiff asserted incounts I and III and the allegations incounts II and IV were identical to thosestated in counts I and III, defendants wereimmunized from liability pursuant to sec-tions 6–105 and 6–106.

¶ 33 On March 5, 2013, the court enteredan order finding there was no just reasonto delay enforcement or appeal of the Feb-ruary 27, 2012, July 27, 2012, and Febru-ary 1, 2013, orders granting summaryjudgment to defendants on counts Ithrough V. It declared the orders final andappealable pursuant to Illinois SupremeCourt Rule 304(a) (eff. Feb. 26, 2010). OnMarch 27, 2013, plaintiff filed her timelynotice of appeal from the March 5, 2013,finality order and the three underlyingsummary judgment orders.

¶ 34 ANALYSIS¶ 35 Plaintiff raises three issues on ap-

peal challenging the court’s grant of sum-mary judgment to defendants on all countsagainst them. She argues: (1) defendantsare not immune from liability under sec-tions 6–105 and 6–106 of the Tort Immuni-ty Act for their negligent failure to appro-

priately treat plaintiff as alleged in countsI and III; (2) defendants are not immunefrom liability under sections 6–105 and 6–106 of the Tort Immunity Act for theirnegligent infliction of emotional distresscaused to plaintiff by their treatment ofher as alleged in counts II and IV; and (3)questions of material fact exist regardingwhether, as asserted in count V, the coun-ty/Stroger Hospital failed to provide plain-tiff with a medical screening examinationwithin the capability of the hospital’semergency department and to stabilize herprior to discharge as required by EMTA-LA. We do not consider whether the de-lay in treatment between plaintiff’s firstand second visit to Stroger Hospital wasthe cause of her injuries or the extent ofher damages as the issues of causation anddamages are not before us.

[1] ¶ 36 Summary judgment is a dras-tic means of disposing of litigation andshould be granted only when ‘‘ ‘ ‘‘the plead-ings, depositions, and admissions on file,together with the affidavits, if any, showthat there is no genuine issue as to anymaterial fact and that the moving party isentitled to a judgment as a matter oflaw.’’ ’ ’’ Axen v. Ockerlund ConstructionCo., 281 Ill.App.3d 224, 229, 217 Ill.Dec. 24,666 N.E.2d 693 (1996) (quoting Purtill v.Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305,489 N.E.2d 867 (1986), quoting Ill.Rev.Stat.1983, ch. 110, ¶ 2–1005(c)). The pur-pose of summary judgment is not to try aquestion of fact but to determine whetherone exists or whether reasonable peoplecould draw different inferences from theundisputed facts. Golden Rule InsuranceCo. v. Schwartz, 203 Ill.2d 456, 462, 272Ill.Dec. 176, 786 N.E.2d 1010 (2003); Woodv. National Liability & Fire InsuranceCo., 324 Ill.App.3d 583, 585, 258 Ill.Dec.225, 755 N.E.2d 1044 (2001). We reviewthe trial court’s decision on a motion forsummary judgment de novo, construing

or maintained by a local public entity.’’ 745 ILCS 10/6–109 (West 2012).


the pleadings, depositions, admissions andaffidavits strictly against the moving partyand liberally in favor of the respondent.Golden Rule Insurance Co., 203 Ill.2d at462, 272 Ill.Dec. 176, 786 N.E.2d 1010;Gauthier v. Westfall, 266 Ill.App.3d 213,219, 203 Ill.Dec. 435, 639 N.E.2d 994(1994).

¶ 37 1. Counts I and III—Negligence

¶ 38 At issue first is the trial court’sgrant of summary judgment to defendantson counts I and III of the fifth amendedcomplaint. The court found defendants, alocal public entity and two of its employ-ees, immune from liability under sections6–105 and 6–106 of the Tort Immunity Actfor the negligence asserted in thosecounts.8

¶ 39 As noted supra, section 6–105 pro-vides:

‘‘Neither a local public entity nor a pub-lic employee acting within the scope ofhis employment is liable for injurycaused by the failure to make a physicalor mental examination, or to make anadequate physical or mental examinationof any person for the purpose of deter-mining whether such person has a dis-ease or physical or mental condition thatwould constitute a hazard to the healthor safety of himself or others.’’ 745ILCS 10/6–105 (West 2012).

‘‘By its plain terms, section 6–105 providesimmunity from liability to a local public

entity and its employees who have failed tomake a physical or mental examination, orwho have failed to make an adequate phys-ical or mental examination.’’ MichiganAvenue National Bank v. County of Cook,191 Ill.2d 493, 505, 247 Ill.Dec. 473, 732N.E.2d 528 (2000).

¶ 40 Section 6–106(a) provides:‘‘Neither a local public entity nor a pub-lic employee acting within the scope ofhis employment is liable for injury re-sulting from diagnosing or failing to di-agnose that a person is afflicted withmental or physical illness or addiction orfrom failing to prescribe for mental orphysical illness or addiction.’’ 745 ILCS10/6–106(a) (West 2012)

By its plain language, section 6–106(a) pro-vides immunity from liability to a localpublic entity and its employees ‘‘for injuryresulting from: (1) a diagnosis that a per-son is afflicted with a mental or physicalillness or addiction; (2) failing to diagnosethat a person is afflicted with a mental orphysical illness or addiction; and/or (3)failing to prescribe for a mental or physi-cal illness or addiction.’’ Michigan Ave-nue National Bank, 191 Ill.2d at 510, 247Ill.Dec. 473, 732 N.E.2d 528.

¶ 41 The trial court stated its basis forgranting summary judgment to defendantson their sections 6–105 and 6–106(a) immu-nity defense as follows: ‘‘The claim againstthe Defendants here is, in essence, based

8. ‘‘In a negligence medical malpractice case,the burden is on the plaintiff to prove thefollowing elements of a cause of action: theproper standard of care against which thedefendant physician’s conduct is measured;an unskilled or negligent failure to complywith the applicable standard; and a resultinginjury proximately caused by the physician’swant of skill or care.’’ Purtill v. Hess, 111Ill.2d 229, 241–42, 95 Ill.Dec. 305, 489N.E.2d 867 (1986). ‘‘Unless the physician’snegligence is so grossly apparent or the treat-ment so common as to be within the everydayknowledge of a layperson, expert medical tes-

timony is required to establish the standard ofcare and the defendant physician’s deviationfrom that standard.’’ Id. at 242, 95 Ill.Dec.305, 489 N.E.2d 867. Illinois courts followthe ‘‘similar locality’’ rule in determining thestandard of care against which the defendantphysician’s alleged negligence is judged. Id.Under this rule, a physician must possess and‘‘apply that degree of knowledge, skill, andcare which a reasonably well-qualified physi-cian in the same or similar community wouldbring to a similar case under similar circum-stances.’’ Id.


on their failure to perform an adequateexamination and their failure to diagnosethe Plaintiff’s spinal cord injury, ratherthan their negligence in treating the spinalcord injury.’’ Plaintiff acknowledges thatdefendants would be immune from liabilityfor failing to make a diagnosis but assertsdefendants are not immune from liabilityfor negligent treatment and that she hasalleged such here.

[2] ¶ 42 Plaintiff correctly points outthat section 6–106 is not meant to grantblanket immunity for negligent treatmentof a specific medical condition. MichiganAvenue National Bank, 191 Ill.2d at 511,247 Ill.Dec. 473, 732 N.E.2d 528. As oursupreme court explained in Michigan Ave-nue National Bank, 191 Ill.2d at 511, 247Ill.Dec. 473, 732 N.E.2d 528:

‘‘Although subsection (a) of section 6–106 grants immunity for diagnosing, orfailing to diagnose, that a person is af-flicted with a physical illness, the re-maining subsections of section 6–106contain limitations on immunity where itis alleged that a local public entity andits public employees have caused a per-son to suffer injury due to the negligentprescription of treatment and/or thenegligent administration of treatment.Specifically, subsection (b) of section 6–106 provides that a local public entityand its public employees are vested withimmunity where they administer treat-ment prescribed for mental or physicalillness or addiction, so long as suchtreatment is administered with ‘duecare.’ 745 ILCS 10/6–106(b) (West1992). Subsection (c) of section 6–106states that defendants are not immu-nized where, having undertaken to pre-scribe for mental or physical illness oraddiction, they have proximately causedan injury to a patient due to negligenceor wrongful acts in so prescribing. 745ILCS 10/6–106(c) (West 1992). Finally,subsection (d) of section 6–106 provides

that defendants are liable for injuryproximately caused by their negligentacts or omissions in the administrationof any treatment prescribed for mentalor physical illness or addiction. 745ILCS 10/6–106(d) (West 1992).’’

¶ 43 It is on the basis of these limita-tions on immunity that plaintiff assertsdefendants are not immune from liabilityfor their negligence here. Asserting thatdefendants erroneously diagnosed her withonly a back injury and began to treat herfor this with pain medication alone, plain-tiff claims that, as alleged in her fifthamended complaint and shown by the ex-pert testimony, ‘‘this is not a failure todiagnose case but instead a negligent andinadequate treatment situation,’’ for which,pursuant to sections 6–106(b), (c) and (d),defendants are not immunized. She ar-gues that, contrary to the trial court’sfinding, the essence of her claim does notstem from defendants’ failures to ade-quately examine, test and diagnose her, forwhich she acknowledges defendants wouldbe immune under section 6–106(a). In-stead, she asserts her claim arises fromdefendants’ ‘‘failure to properly performan initial medical screening examination,screen the Plaintiff for her deterioratingsigns and symptoms, properly treat thePlaintiff for those signs and symptoms,and properly consult with or refer thePlaintiff to a neurologist or neurosurgeon,’’for which defendants would not be immu-nized. Plaintiff claims the court erred infinding immunity where defendants diag-nosed plaintiff while still in their emergen-cy room and began administering treat-ment to her but did so in a negligentmanner. Citing to American NationalBank & Trust Co. of Chicago v. County ofCook, 327 Ill.App.3d 212, 261 Ill.Dec. 85,762 N.E.2d 654 (2001), she argues that itwas this treatment and the subsequentinadequate examinations and prescriptionof treatment that were negligent and de-fendants, therefore, were not immune un-


der the Tort Immunity Act. In plaintiff’spetition for rehearing, she further arguesthat the initial diagnosis in the emergencyroom was correct but the treatment plain-tiff received for that diagnosis was negli-gent.

¶ 44 In American National Bank &Trust Co., during a prenatal examination,doctors at a Cook County hospital clinicdiagnosed the plaintiff with a ‘‘transverselie’’ of her baby, meaning the baby couldnot delivered vaginally. They prescribedregular monitoring of plaintiff and the reg-ular performance of assorted medical teststo determine the baby’s position andwhether a caesarean section would be re-quired to deliver the baby. Doctors con-sistently performed the prescribed testsand verified that the baby was in thetransverse lie position. However, shortlybefore the plaintiff went into labor, one ofthe defendant doctors determined, incor-rectly and without performing the pre-scribed tests, that the baby was no longerin the transverse lie position. When theplaintiff went into labor, the baby wasundeliverable due to its birth position. Anemergency caesarean section was per-formed but the baby suffered brain dam-age. The defendants argued they wereimmune from liability under sections 6–105and 6–106. The court disagreed.

¶ 45 The court found the doctor’s actionsin failing to determine that the baby wasstill in a transverse lie position was not a‘‘diagnosis’’ for which the defendants wouldbe immune under section 6–106(a) as thedoctor had not examined the plaintiff inorder to investigate, analyze or determineher medical condition. American Nation-al Bank & Trust Co., 327 Ill.App.3d at 217,261 Ill.Dec. 85, 762 N.E.2d 654. Instead,it found the doctor was already aware ofthe plaintiff’s medical condition, specifical-ly the existing ‘‘transverse lie’’ diagnosis,and the doctor’s actions consisted of‘‘treating’’ by caring for and managing thepreviously diagnosed known condition. Id.The court stated that, once the initial diag-nosis of transverse lie was made, eachsubsequent prenatal examination did notinvolve a separate and independent diag-nosis to determine whether the baby wasstill in a transverse lie position. Id.

¶ 46 The court explained, ‘‘ ‘once diagno-sis of a medical condition is made andtreatment of that condition is prescribedand undertaken, any subsequent diagnosisrequired to be made as a result of thattreatment, such as with respect to compli-cations arising from medications pre-scribed or medical procedures performed,may not be entitled to the immunity pro-tection of section 6–106(a).’ ’’ 9 American

9. The court used the definitions of ‘‘diagno-sis’’ and ‘‘treatment’’ set forth by our supremecourt in Michigan Avenue National Bank v.County of Cook, 306 Ill.App.3d 392, 239 Ill.Dec. 713, 714 N.E.2d 1010 (1999). Givingthe term ‘‘diagnosis’’ as used in section 6–106(a) it’s plain and ordinary meaning asgleaned from assorted dictionaries, the su-preme court found it to mean, among otherthings, the ‘‘art or act of identifying a diseasefrom its signs and symptoms, and as an inves-tigation or analysis of the cause or nature of acondition, situation, or problem,’’ as well as‘‘the art of distinguishing one disease fromanother,’’ ‘‘the determination of the nature ofa case of disease’’ and ‘‘[t]he determination ofa medical condition (such as disease) by phys-

ical examination or by study of its symp-toms.’’ (Internal quotation marks omitted.)Michigan Avenue National Bank, 191 Ill.2d at510, 247 Ill.Dec. 473, 732 N.E.2d 528.

It found ‘‘treatment’’ as used in section 6–106(a) to mean, ‘‘the action or manner oftreating a patient medically or surgically’’ and‘‘[t]he care of a sick person, and the remediesor means employed to combat the diseaseaffecting him’’ as well as ‘‘[t]he managementand care of a patient for the purpose of com-bating disease or disorder’’ and ‘‘[t]he medi-cal or surgical management of a patient.’’(Internal quotation marks omitted.) Michi-gan Avenue National Bank, 191 Ill.2d at 511–12, 247 Ill.Dec. 473, 732 N.E.2d 528.


National Bank & Trust Co., 327 Ill.App.3dat 219, 261 Ill.Dec. 85, 762 N.E.2d 654(quoting Michigan Avenue NationalBank, 306 Ill.App.3d at 402, 239 Ill.Dec.713, 714 N.E.2d 1010). For example, treat-ment of the diagnosed illness might re-quire further medical testing in order todiagnose and treat any additional medicalconditions that result from the treatmentprescribed for the diagnosed medical con-dition. Id. at 220, 261 Ill.Dec. 85, 762N.E.2d 654. ‘‘ ‘The making of the subse-quent diagnosis would become part of thetreatment prescribed for the medical con-dition initially diagnosed; and there wouldbe no immunity if the subsequent diagno-sis was incorrectly made (a negligent orwrongful act) or if the diagnosis was notmade at all (an act of omission).’ ’’ Id. at219, 261 Ill.Dec. 85, 762 N.E.2d 654 (quot-ing Michigan Avenue National Bank, 306Ill.App.3d at 403, 239 Ill.Dec. 713, 714N.E.2d 1010). ‘‘Following the same logic* * *, once diagnosis of a medical condi-tion is made and treatment of the conditionis prescribed and undertaken, any subse-quent prescription or examination requiredto be made pursuant to that condition ispart of the patient’s treatment.’’ Id. at220, 261 Ill.Dec. 85, 762 N.E.2d 654.

¶ 47 The court stated that the plaintiffhad been diagnosed with transverse lieprior to her examination by the doctor andthe prescribed treatment for her conditionconsisted of regular monitoring of her con-dition, testing and manual maneuvers todetermine the baby’s position and whethera Caesarean section would be required.The doctor’s alleged failure to schedule orperform such testing or manipulation con-stituted an act of omission in administeringthe plaintiff’s prescribed treatment for herpreviously diagnosed condition. AmericanNational Bank & Trust Co., 327 Ill.App.3dat 220, 261 Ill.Dec. 85, 762 N.E.2d 654.‘‘Under section 6–106(d), in the course ofadministering the treatment prescribedthere is no immunity if the subsequent

prescription or examination was incorrect-ly made (a negligent or wrongful act) or ifthe prescription or examination was notmade at all (an act of omission).’’ Id. Thecourt found the doctor’s conduct was,therefore, afforded no immunity under sec-tion 6–106(d). Id.

¶ 48 Plaintiff asserts Dr. Bishof diag-nosed plaintiff with a muscle spasm withpossible back contusion and then beganadministering treatment to her for her in-juries based on that diagnosis by adminis-tering pain medication and ‘‘nothing’’ forher muscle spasm. Plaintiff claims thatDr. Bishof had, at this point, begun treat-ment for plaintiff’s condition, prescribedtreatment in the form of pain medicine andthe orders for X-rays and had undertakenthe treatment as the pain medication wasin fact administered. She argues that, asa result, following American NationalBank & Trust Co., any subsequent pre-scription or examination required to bemade pursuant to that condition is part ofplaintiff’s treatment for purposes of analy-sis under the Tort Immunity Act. Plaintiffclaims that Dr. Bankoff then continued totreat her for the injuries previously diag-nosed by Dr. Bishof by examining her,administering additional pain medicationand, upon discharge, providing her with aprescription for another pain medication.Plaintiff argues that this evidence showsdefendants undeniably began treatingplaintiff for the injuries they diagnosed aswell as for her signs and symptoms and,therefore, once defendants undertook andprescribed her treatment, they were notimmune from negligent treatment, negli-gent prescription of treatment, inadequatetreatment, omission in administering treat-ment or failure to make subsequent exami-nations of plaintiff.

[3] ¶ 49 Contrary to plaintiff’s argu-ment, this is not a case where the defen-dants negligently prescribed and adminis-


tered treatment to the plaintiff after acorrect diagnosis as in American NationalBank & Trust Co. It is, instead, a failureto diagnose case, as the trial court correct-ly found. All of plaintiff’s claims of negli-gent treatment are directed to defendants’improper treatment of her spinal cord in-jury. Defendants treated plaintiff for hersigns and symptoms but consistently diag-nosed those signs and symptoms as musclespasm and back/buttock contusion, not spi-nal cord injury.

[4] ¶ 50 Taking Drs. Bishof’s and Ban-koff’s administration of Valium and painmedication as ‘‘treatment’’ for plaintiff’sdiagnosed condition, that diagnosed condi-tion was always ‘‘muscle spasm’’ with pos-sible back/buttock contusion. Dr. Bishoftestified that this was her initial impres-sion, was her ‘‘final’’ impression after hermultiple examinations, observations andtesting of plaintiff and was verified by herattending physician. When the results ofthe CAT scan ordered by Dr. Bishof cameback ‘‘normal,’’ Dr. Bankoff confirmed Dr.Bishof’s initial impression that plaintiffsuffered from back/buttock contusion. Af-ter numerous examinations, observationsand tests, defendants ruled out spinal cordinjury as a diagnosis and settled on musclespasm and a discharge diagnosis ofback/buttock contusion. Spinal cord orneurological injury was never a differentialdiagnosis. In retrospect, defendants werewrong and plaintiff did have a spinal cordinjury. They misdiagnosed her. Howev-er, as our supreme court explained inMichigan Avenue National Bank, a misdi-agnosis is a ‘‘wrong or mistaken diagnosis’’for which defendants are immune fromliability under section 6–106(a). (Internalquotation marks omitted.) Michigan Ave-nue National Bank, 191 Ill.2d at 514, 247Ill.Dec. 473, 732 N.E.2d 528.

¶ 51 Having ruled out a neurological in-jury, defendants consistently treated plain-tiff for the muscle spasm and back/buttock

contusion injury with which they had mis-diagnosed her. There is no evidence thatthe treatment defendants provided for thesigns and symptoms they attributed tomuscle spasm and back/buttock contusionwas negligent for that diagnosis. In otherwords, there being no evidence to the con-trary, defendants treated the wrong diag-nosis correctly. Defendants’ arguablyproven negligence was in their failure toperform adequate medical examinations ortesting leading to their failure to diagnoseplaintiff’s spinal cord injury, for which theyare immune from liability under sections6–105 and 6–106(a). Although, accordingto plaintiff’s expert witnesses, defendantsshould have immobilized plaintiff, hospital-ized her, administered steroids, consulteda neurosurgeon or neurologist and orderedan MRI for her spinal cord injury, thereality is that defendants did not diagnosea spinal cord injury and those additionaltreatments and testing were not indicatedfor the muscle spasm and back/buttockcontusion with which they diagnosed her.The treatment defendants provided toplaintiff was appropriate for the injurywith which they diagnosed her and theyare immune from liability for that misdiag-nosis. Michigan Avenue National Bank,191 Ill.2d at 514, 247 Ill.Dec. 473, 732N.E.2d 528. Unlike in American Nation-al Bank & Trust Co., there is no evidencethat the treatment provided to plaintiffwas inadequate or negligent for the diag-nosis. The fact that the muscle spasmdiagnosis was incorrect or inadequate doesnot, without more, make defendants’ treat-ment for that diagnosis negligent. Thefact that the treatment was the wrongtreatment for spinal cord injury would berelevant only if defendants had diagnosedplaintiff with a spinal cord injury. Theyhad not. They diagnosed her with a mus-cle spasm and possible back/buttock contu-sion and treated her solely for that. Infact, plaintiff’s expert Dr. Upton supports


the conclusion that the diagnosis in theemergency room was incorrect. Dr. Up-ton testified that he did not know how Dr.Bishof ‘‘could even begin to suggest’’ thatplaintiff’s numbness was due to musclespasm and found this to be ‘‘quite franklynonsense.’’

¶ 52 Plaintiff’s argument is similar tothat raised by the plaintiff in MichiganAvenue National Bank. There, the plain-tiff, the special administrator of the estateof Cynthia Collins, characterized its law-suit as grounded in the defendants’ failureto administer proper treatment to Collinsafter determining that Collins sufferedfrom a specific medical condition and ar-gued the defendants were, therefore, liableunder sections 6–106(b), (c) and (d). Doc-tors at a Cook County hospital had diag-nosed Collins with fibrocystic breast dis-ease and advised her to return in threemonths. During subsequent visits to thehospital’s emergency room for other ail-ments, including a pain in her breast, thedoctors consistently failed to diagnose thatCollins suffered from breast cancer. Atanother hospital, Collins was diagnosedwith the cancer and died from it. Theplaintiff filed a two-count complaintagainst the defendants, alleging their neg-ligence in failing to order a mammogram,failing to adequately perform tests andexaminations, failing to perform a biopsy,failing to diagnose Collins’ breast cancerand failing to administer proper and neces-sary medical and nursing care to Collins.Michigan Avenue National Bank, 191Ill.2d at 499, 247 Ill.Dec. 473, 732 N.E.2d528. The trial court granted summaryjudgment to the defendants pursuant tosections 6–105 and 6–106(a) of the TortImmunity Act and the appellate and su-preme courts affirmed.

¶ 53 The supreme court found the alle-gations made in the plaintiff’s complaintcontradicted its assertion that its actionwas premised upon the defendants’ negli-

gent treatment of Collins. Michigan Ave-nue National Bank, 191 Ill.2d at 513, 247Ill.Dec. 473, 732 N.E.2d 528. It found,instead, that ‘‘the gravamen of plaintiff’saction against defendants is that defen-dants’ failure either to perform examina-tions or to adequately perform examina-tions led to defendant’s failure to diagnoseCollins’ breast cancer, which, in turn, prox-imately caused her death’’ and, therefore,‘‘the immunity provided to local public en-tities and their public employees in section6–105 and subsection (a) of section 6–106applies.’’ Michigan Avenue NationalBank, 191 Ill.2d at 512, 247 Ill.Dec. 473,732 N.E.2d 528. The plaintiff had allegedthat the defendants’ negligent misdiagno-sis of fibrocystic breast disease had pre-vented the discovery of Collins’ breast can-cer and was the proximate cause of herdeath. Noting that ‘‘ ‘[m]isdiagnosis’ is de-fined as a ‘wrong or mistaken diagnosis’ ’’(id. at 514, 247 Ill.Dec. 473, 732 N.E.2d 528(quoting Stedman’s Medical Dictionary 973(25th ed. 1990))), the court held that, ‘‘[b]e-cause [section 6–106(a) ] immunizes defen-dants ‘from diagnosing or failing to diag-nose’ that a person has a physical illness,plaintiff’s attempts to characterize its law-suit as a case of ‘misdiagnosis’ does notremove its action from the ambit of [sec-tion 6–106(a) ]’’ (id.).

¶ 54 The court also found the plaintiff’sargument that its cause was an action fornegligent treatment rather than failure todiagnose was not supported by the deposi-tion testimony of the plaintiff’s own ex-perts, noting there was no testimony bythe experts that fibrocystic breast diseaseis treatable, that any treatment of Collins’fibrocystic breast disease occurred or thatthere was negligence in the course oftreatment. The court concluded:

‘‘The criticisms lodged against defen-dants by plaintiff’s experts * * * fo-cused upon the failure to performcertain examinations, such as a mam-


mogram, ultrasound or biopsy. Thisfailure, in turn, led to defendants’failure to diagnose Collins’ breast can-cer, which, the experts surmised, hadcoexisted with Collins’ fibrocystic con-dition. Section 6–105 immunity ap-plies to defendants’ alleged failure toconduct physical examinations in orderto evaluate whether Collins sufferedfrom breast cancer in addition to fi-brocystic condition. In addition, be-cause defendants rendered no medicaltreatment to Collins in relation to herbreast condition on October 22, 1986,defendants’ failure to diagnose breastcancer is conduct to which section 6–106(a) immunity applies.’’ MichiganAvenue National Bank, 191 Ill.2d at516, 247 Ill.Dec. 473, 732 N.E.2d 528.

¶ 55 Similarly here, although plaintiffargues that ‘‘this is not a failure to diag-nose case, but instead a negligent and in-adequate treatment situation,’’ the grava-men of her fifth amended complaint isthat defendants’ failure either to performexaminations or to adequately performexaminations led to their failure to diag-nose and treat plaintiff’s spinal cord inju-ry, which, in turn, proximately caused herclaimed injuries.10 The import of allthese allegations is that defendants’ fail-ure to properly perform an initial exami-nation of plaintiff, screen her and consultwith a spine expert prevented them fromreaching a correct diagnosis of spinal cordinjury. Only because defendants failed todiagnose the spinal cord injury did theyfail to properly treat plaintiff’s signs and

symptoms, properly treat her spinal cordinjury and properly refer her to a neurol-ogist or neurosurgeon. Only because de-fendants failed to properly diagnose andtreat plaintiff for a spinal cord injury didshe suffer her ultimate injuries. In plain-tiff’s reply brief, she states that ‘‘thecrux’’ of her case is her allegation thatdefendants’ treatment for their diagnosesof muscle spasm and back/buttock contu-sion was negligent. Yet nowhere in hercomplaint has she alleged that that thetreatment provided to her was impropertreatment for the muscle spasm andback/buttock contusion diagnoses. More-over, as discussed in detail below, her ex-perts have stated no opinion that thetreatment she received was inadequateand negligent for a muscle spasm andback/buttock contusion injury.

¶ 56 If defendants began treating plain-tiff for their diagnosis of muscle spasm andback/buttock contusion, then they are notimmune from liability for negligently pre-scribing or administering that treatment,including negligently examining her in thecourse of that treatment. Plaintiff argues,therefore, that defendants should have or-dered more diagnostic testing of and madesubsequent examinations of her when hercondition did not improve after the initialdiagnosis and treatment and they are notimmune for their failure to do so. Shepoints to her expert witness Dr. Corre’stestimony that defendants should haveconducted more tests and examinations onplaintiff based on the symptoms that theywere treating to rule out a spinal cord

10. In the fifth amended complaint, plaintiffclaimed she suffered injuries as a proximateresult of one or more of the following negli-gent acts or omissions by Drs. Bishof andBankoff and/or the county:

‘‘a. Failing to properly perform an ini-tial medical screening examination; or

b. Failing to properly screen [her] forher signs and symptoms; or

c. Failing to properly treat [her] for hersigns and symptoms; or

d. Failing to properly treat [her] for aspinal cord injury; or

e. Failing to properly consult with aneurologist or neurosurgeon for [her] signsand symptoms; or

f. Failing to refer [her] to a neurologistor neurosurgeon for treatment of her signsand symptoms * * *.’’


injury and that they were negligent forfailing to order an MRI of her spine and toconsult a spine specialist. This testimonyby Dr. Corre is evidence that defendantsfailed to adequately examine plaintiff, forwhich they are immune under section 6–105.11 It is not evidence that defendantsnegligently treated plaintiff for their diag-nosis.

¶ 57 Dr. Corre never testified that de-fendants’ failure to immobilize plaintiff oradminister steroids to her was negligenttreatment in violation of the standard ofcare for a diagnosed back/buttock contu-sion. Although he testified many timesthat defendants should have immobilizedplaintiff, stabilized her spine and given herhigh-dose steroids, he stated these opin-ions in the context of defendants’ failure toproperly examine, diagnose and treat herspinal cord contusion/injury. He did nottestify that such treatment is required fora muscle spasm or a back/buttock contu-sion and his testimony is not evidence thatdefendants were negligent in treating forplaintiff’s, in retrospect incorrect,back/buttock contusion diagnosis.

¶ 58 As in Michigan Avenue NationalBank, and unlike in American Bank &Trust Co., there was never a correct diag-nosis here for which treatment was pre-scribed and negligently rendered. Fol-

lowing Michigan Avenue National Bank,defendants are immune from liability un-der section 6–106(a) for their failure to di-agnose plaintiff’s spinal cord injury andtheir misdiagnosis of her injury as a mus-cle spasm and/or back/buttock contusion.See also Mabry v. County of Cook, 315 Ill.App.3d 42, 248 Ill.Dec. 62, 733 N.E.2d 737(2000) (doctors at a public hospital diag-nosed a patient with asthma but the pa-tient died of undiagnosed pulmonary em-bolism; the court found the defendantsimmune from liability for failure to treat acondition they had not diagnosed, findingthat the alleged negligence was based noton treatment actually received for asthmabut on treatment that should have beenreceived and diagnosis that should havebeen made).

¶ 59 Although plaintiff need not proveher entire case at the summary judgmentstage, she must still present a factual basisthat could arguably entitle her to judg-ment in her favor. Wallace v. AlexianBrothers Medical Center, 389 Ill.App.3d1081, 1086, 329 Ill.Dec. 899, 907 N.E.2d490 (2009). Construing the pleadings, de-positions, admissions and affidavits strictlyagainst defendants and liberally in favor ofplaintiff, we find plaintiff has failed topresent evidence to show that defendantswere negligent in treating her diagnosed

11. Based on the deposition testimony of Drs.Corre and Upton, we consider an MRI to be adiagnostic tool and defendants’ failure to or-der an MRI to be a failure to perform adiagnostic step. Dr. Corre testified ‘‘[t]hemedical screening examination required acomplete and detailed history, a complete anddetailed physical exam. It required imagingwhich included an MRI of the spine. It re-quired stat consultation with a spine special-ist.’’ He also testified that ‘‘the imaging thatwas performed on the initial evaluation wasinadequate and should have included anMRI.’’ He stated that, if plaintiff had beendiagnosed with a spinal cord contusion with-out an MRI, then the MRI did not have to bedone immediately. However, since Dr. Bish-

of did not make that diagnosis, it was Dr.Corre’s opinion that ‘‘it would have been ap-propriate and standard to have gotten thetest.’’

Dr. Upton testified similarly, stating that, ashe would have known from the ‘‘evidence’’that plaintiff had a spinal cord lesion, for him,‘‘the MRI isn’t the way of making the diagno-sis’’ but rather ‘‘a way of confirming or deny-ing the clinical diagnosis which is that there’sa spinal cord injury.’’ However, as Dr. Bish-of did not know what was wrong with plain-tiff and did not ‘‘have enough evidence’’ and‘‘didn’t come up with a clear diagnosis aboutspinal cord at all,’’ it was Dr. Upton’s opinionthat ‘‘the MRI should be a way of helping[her] see what is going on.’’


condition. The court did not err in findingdefendants immune from liability undersection 6–105 (failure to conduct an ade-quate examination) and section 6–106(a)(failure to diagnose) for the negligence as-serted in counts I and III. We affirm thetrial court’s grant of summary judgment todefendants on counts I and III.

¶ 60 2. Counts II and IV—NegligentInfliction of Emotional Distress

¶ 61 Next, we consider the trial court’sgrant of summary judgment to defendantson counts II and IV of the fifth amendedcomplaint pleading negligent infliction ofemotional distress. The court held thatcounts II and IV were ‘‘not pled’’ as claimsfor negligent infliction of emotional dis-tress but, rather, except for an additionalallegation of emotional distress as an ele-ment of damages, were identical to countsI and III sounding in negligent medicalmalpractice. As the negligent infliction ofemotional distress counts stemmed fromthe same failure to adequately examine,test and diagnose asserted by plaintiff inher negligence counts and the allegationsin the four counts were identical, the courtheld that defendants immunized from lia-bility pursuant to sections 6–105 and 6–106.

[5–9] ¶ 62 Illinois applies a ‘‘general-negligence approach to a claim of negligentinfliction of emotional distress raised by adirect victim of the defendant’s negli-gence.’’ Thornton v. Garcini, 382 Ill.App.3d 813, 817, 321 Ill.Dec. 284, 888N.E.2d 1217 (2008), aff’d, 237 Ill.2d 100,340 Ill.Dec. 557, 928 N.E.2d 804 (2010)(citing Corgan v. Muehling, 143 Ill.2d 296,306, 158 Ill.Dec. 489, 574 N.E.2d 602(1991)). For a direct victim, such as plain-tiff here, to state a claim for negligentinfliction of emotional distress, she mustallege that: (1) the defendant owed her aduty; (2) the defendant breached thatduty; and (3) her injury was proximatelycaused by that breach. Parks v. Kow-

nacki, 193 Ill.2d 164, 181, 249 Ill.Dec. 897,737 N.E.2d 287 (2000) (citing Corgan, 143Ill.2d at 306, 158 Ill.Dec. 489, 574 N.E.2d602). ‘‘Whether a duty exists is a questionof law for the court to decide.’’ Washing-ton v. City of Chicago, 188 Ill.2d 235, 239,242 Ill.Dec. 75, 720 N.E.2d 1030 (1999). Inresolving whether a duty should be im-posed, ‘‘a court must determine whetherthere is a relationship between the partiesrequiring that a legal obligation be im-posed upon one for the benefit of theother,’’ taking into consideration factorsincluding ‘‘the reasonable foreseeability ofinjury, the likelihood of such injury, themagnitude of guarding against the injury,and the consequences of placing that bur-den on the defendant.’’ Id. If the victimhas not alleged facts sufficient to impose aduty on the defendants, she has failed tostate a claim and her action should bedismissed. Parks, 193 Ill.2d at 181, 249Ill.Dec. 897, 737 N.E.2d 287. ‘‘[U]nless aduty is owed, there is no negligence [cita-tion], and plaintiffs cannot recover as amatter of law [citation].’’ (Internal quota-tion marks omitted.) Washington, 188Ill.2d at 239, 242 Ill.Dec. 75, 720 N.E.2d1030.

[10] ¶ 63 Plaintiff’s claims for negli-gent infliction of emotional distress arenothing more than a recasting of her medi-cal negligence claims for which defendantshave immunity. Except for the addition ofan allegation that plaintiff suffered andwould continue to suffer severe mental andemotional anguish due to her injuriesproximately resulting from defendants’negligent acts or omissions, plaintiff’s alle-gations in her negligent infliction of emo-tional distress counts were, as the trialcourt found, identical to the allegations inher medical negligence counts. In bothplaintiff’s medical negligence and negligentinfliction of emotional distress counts, shealleged that Drs. Bishof and Bankoff ‘‘had


the duty to possess and apply the knowl-edge and use the skill of a reasonable wellqualified emergency room physician underthe same or similar circumstances’’ andwere negligent in failing to: (1) properlyperform an initial medical screening exam-ination; (2) properly screen her for hersigns and symptoms; (3) properly treather for her signs and symptoms; (4) prop-erly treat her for a spinal cord injury; (5)properly consult with a neurologist or neu-rosurgeon for her signs and symptoms; or(6) refer her to a neurologist or neurosur-geon for treatment of her signs and symp-toms.

¶ 64 Plaintiff makes many of the sameassertions in her argument here as she didin supporting her medical negligenceclaims (resolved in section 1 supra ). Spe-cifically, she asserts that her experts’ testi-mony that she had a spinal cord injuryrather than a muscle spasm or back/but-tock contusion and that Drs. Bishof andBankoff should have immobilized herspine, ordered an MRI or further testing,administered steroids and consulted with aspine specialist shows defendants clearlyundertook treatment of her, this treatmentwas negligent and defendants are not im-mune from liability for the negligent treat-ment and the emotional distress resultingfrom it. As we have already determined,defendants are immune from liability forthese alleged negligent ‘‘treatments.’’ Thetestimony of plaintiff’s expert witnessesshowed that defendants were negligent infailing to diagnose her with a spinal cordinjury and in treating a spinal cord injurybut did not show that defendants werenegligent in treating her for her diagnosedcondition, muscle spasm and/or back/but-tock contusion. We, therefore, found de-fendants immune from liability pursuant tosection 6–105 for their failures to ade-quately examine plaintiff and immune fromliability pursuant to section 6–106(a) fortheir failure to correctly diagnose her.There being no evidence that the treat-

ment defendants undertook for the musclespasm and/or back/buttock contusion diag-nosis was negligent for that diagnosis, wefound no basis on which to impose thelimitation on immunity provided in section6–106(d).

¶ 65 As additional evidence that defen-dants treated her negligently and she suf-fered severe emotional distress as a result,plaintiff points to her testimony that thedoctors did not believe her, ordered her tostand when she could not, dropped herwhen she could not stand, accused her oflying, would not listen to her and insistedthere was nothing wrong with her. Shepoints to her testimony that, as a result ofhow she was treated, she has no self-confidence anymore, feels no one will be-lieve her or put faith and trust in her, thatpeople think she is a ‘‘phony’’ and that shehas to defend or explain herself. Shepoints to her testimony that, while she wasat Oak Park Hospital, she spoke to a psy-chologist for ‘‘these’’ emotional problemson a regular basis. She also points to OakPark Hospital psychologist Dr. Brach-man’s testimony that plaintiff’s injuryprobably exacerbated her existing mentalconditions and Dr. Corre’s testimony thatdefendants failed to take her seriously. InAmerican National Bank & Trust Co., 327Ill.App.3d at 220, 261 Ill.Dec. 85, 762N.E.2d 654, the court held, ‘‘[u]nder sec-tion 6–106(d), in the course of administer-ing the treatment prescribed there is noimmunity if the subsequent prescription orexamination was incorrectly made (a negli-gent or wrongful act) or if the prescriptionor examination was not made at all (an actof omission).’’ On this basis, plaintiff ar-gues that defendants ‘‘were very insulting’’to her and this negligent treatment, inaddition to the negligent treatment defen-dants prescribed for her signs and symp-toms, caused her severe emotional distressfor which defendants are not immunizedunder the Tort Immunity Act.


¶ 66 In order to show negligent inflictionof emotional distress, plaintiff must showdefendants had a duty toward her, theybreached that duty and she suffered injuryas a proximate result of that breach.Parks, 193 Ill.2d at 181, 249 Ill.Dec. 897,737 N.E.2d 287. Although plaintiff doesnot articulate her argument as such, sheappears to be suggesting, without citationto legal authority or evidentiary support,that defendants had a duty to believe herand not to question the sincerity of hercomplaints. She appears to argue that themanner in which defendants spoke to herand addressed her concerns was part ofthe ‘‘treatment’’ they provided to her, theywere negligent in this ‘‘insulting’’ treat-ment and she suffered emotional distressas a result.

¶ 67 Plaintiff, however, makes no argu-ment regarding the existence of a physi-cian’s duty to treat her politely or, at aminimum, not to treat her rudely, or aduty to believe her. At most, her asser-tion is that the doctors offended her inassorted ways and that she suffered severeemotional distress as a result. Althoughplaintiff’s expert witnesses testified indepth regarding defendants’ violations ofthe standard of care applicable to an emer-gency room physician’s examination, treat-ment and diagnosis of a patient presentingwith plaintiff’s signs and symptoms, theydid not testify that a standard of careexists for an emergency room physician’sdeportment toward a patient. They didnot testify that an emergency room physi-cian in defendants’ circumstances has aduty to believe and not question the sinc-erity of a patient’s complaints or that thestandard of care so requires, let alone thatdefendants breached this standard of care.

¶ 68 Plaintiff asserted at oral argument,without citation to the record, that Drs.Upton and Corre testified that defendants’failure to take plaintiff seriously was aviolation of the standard of care. The

closest Dr. Upton came to stating such ishis testimony that ‘‘the management hererequired, optimal management requiredrecognition of the problem, not thinkingit’s fictitious.’’ (Emphasis added.) How-ever, Dr. Upton stated this opinion specifi-cally in the context of plaintiff’s visit to Dr.Fishman, who had noted in plaintiff’s med-ical record his diagnosis of ‘‘numbness,possibly fictitious.’’ Further, even if thisopinion could arguably apply to defen-dants’ ‘‘management’’ of plaintiff, it is anopinion based on the particular ‘‘manage-ment here,’’ i.e., the circumstances ofplaintiff’s case, and is not a general state-ment that physicians have a duty to be-lieve a patient or take her seriously, letalone a duty to do so against their ownprofessional judgment.

¶ 69 With regard to Dr. Corre’s testimo-ny, he testified that there was a ‘‘blatantfailure’’ by defendants to take plaintiff ser-iously and this was a deviation from thestandard of care. He defined this devia-tion in some detail, closing with ‘‘not oneperson * * * takes this [plaintiff’s] com-pendium of signs and symptoms and mech-anisms and findings and considered seri-ously that the patient could have a spinalcord contusion, spinal cord injury.’’ Al-though Dr. Corre testified that defendantsviolated the standard of care by not takingplaintiff seriously, his opinion was basedon the specific circumstances of her case,on the ‘‘compendium of signs and symp-toms and mechanisms and findings’’ shepresented with. His opinion was not ageneral statement that physicians have aduty to believe a patient even though theirfindings or professional experience showotherwise. Moreover, a duty to take apatient seriously is not the same as a dutyto believe a patient. Given the number oftests and examinations defendants con-ducted of plaintiff, it appears they didinitially take her seriously but then, whenthe tests results did not support her com-


plaints, determined she was not believable.This, therefore, in a circular way, bringsthe analysis back to failure to diagnose ormisdiagnosis, which is immunized. Plain-tiff’s allegations are insufficient to showany duty breached by defendants whenthey ‘‘insulted’’ or did not believe her and,therefore, are insufficient to state a claimfor negligent infliction of emotional dis-tress.

[11] ¶ 70 In determining whether aduty should be imposed, we must deter-mine whether there is a relationship be-tween the parties requiring that a legalobligation be imposed on one party for thebenefit of the other, taking into consider-ation factors including ‘‘the reasonableforeseeability of injury, the likelihood ofsuch injury, the magnitude of guardingagainst the injury, and the consequences ofplacing that burden on the defendant.’’Washington, 188 Ill.2d at 239, 242 Ill.Dec.75, 720 N.E.2d 1030. As a result of theparticular relationship between a physicianand patient at issue here, the law imposeson a physician the duty to exercise duecare in attending to the needs of his or herpatient. Nichelson v. Curtis, 117 Ill.App.3d 100, 104, 72 Ill.Dec. 630, 452N.E.2d 883 (1983). However, there is nolegal authority imposing a duty on physi-cians to believe a patient contrary to theirown medical judgment and experience orto accept without question the sincerity ofa patient’s complaints. Other than therecognized standard of care, we decline toimpose on physicians an additional duty tobelieve a patient or not to question a pa-tient’s sincerity for fear of the remote

chance that this may cause the patientemotional distress. In considering theconsequences of imposing such a burdenon the medical profession, we find theimposition of such a duty would have achaotic effect upon the practice of medicinein that medical professionals would be un-able to question the sincerity of any pa-tient’s complaints. The magnitude of thenegative effect imposing such a duty wouldhave on the medical profession vastly out-weighs the remote possibility that a pa-tient may suffer emotional distress if theduty is not imposed.

¶ 71 Construing the pleadings, deposi-tions, admissions and affidavits strictlyagainst defendants and liberally in favor ofplaintiff, we find plaintiff has not suffi-ciently alleged the existence of a duty re-quiring defendants to comport themselvesin a courteous manner towards her or tobelieve her. Accordingly, given that de-fendants are immune from liability fortheir ‘‘physical’’ treatment and that plain-tiff has not sufficiently alleged that defen-dants had a duty to comport themselvestowards her in any particular manner or tobelieve her complaints, the court did noterr in granting summary judgment to de-fendants on the negligent infliction of emo-tional distress counts II and IV.12

¶ 72 3. Count V—EMTALA

¶ 73 Lastly, we consider whether thetrial court erred in granting summaryjudgment to the county on count V of thefifth amended complaint, in which plaintiffalleged the county violated EMTALA.The court found EMTALA applied to the

12. We will not address the question of wheth-er section 6–109 of the Tort Immunity Actapplies here. Section 6–109 provides for im-munity for a local public entity and its em-ployees ‘‘for an injury resulting from the fail-ure to admit a person to a medical facilityoperated or maintained by a local public enti-ty.’’ 745 ILCS 10/6–109 (West 2012). Defen-dants raised this immunity in their motion for

summary judgment, asserting that plaintiff’sclaim for negligent infliction of emotional dis-tress was based on defendants’ failure to ad-mit her to the hospital. As the trial courtfound and plaintiff points out in her replybrief on appeal, her arguments were notbased on defendants’ failure to admit her tothe hospital.


county but that plaintiff failed to show thatthe medical screening examination she re-ceived at Stroger Hospital violated EMTA-LA or that she required stabilization foran emergency medical condition prior toher discharge from the emergency room asrequired by EMTALA.

[12] ¶ 74 At Stroger Hospital, thecounty offers emergency room services.‘‘Where emergency room services are of-fered, a certain level of health care isrequired to be provided to every personwho seeks treatment there. That is so asa matter of both state (210 ILCS 80/1(West 2002); see also 210 ILCS 70/1 (West2002)) and federal (42 U.S.C. § 1395dd)law.’’ Provena Covenant Medical Centerv. Department of Revenue, 236 Ill.2d 368,375, 339 Ill.Dec. 10, 925 N.E.2d 1131(2010). Codified at 42 U.S.C. § 1395dd,EMTALA is that federal law. Jinkins v.Evangelical Hospitals Corp., 336 Ill.App.3d 377, 385, 270 Ill.Dec. 548, 783N.E.2d 123 (2002). In order to preventpatient dumping, ‘‘EMTALA prohibits hos-pitals from rejecting patients sufferingfrom emergency medical conditions with-out first stabilizing or transferring the pa-tients.’’ Arellano v. Department of Hu-man Services, 402 Ill.App.3d 665, 675, 348Ill.Dec. 23, 943 N.E.2d 631 (2010).

‘‘ ‘Patient dumping’ refers to the practiceof a hospital that, despite its capabilityto provide needed medical care, eitherrefuses to see or transfers a patient toanother institution because of the pa-tient’s inability to pay. Congress soughtto end patient dumping by requiring anyhospital receiving federal funds to exam-ine patients who seek treatment in anemergency department and treat anyserious medical condition detected.’’Baber v. Hospital Corp. of America, 977F.2d 872, 873, n. 1 (4th Cir.1992) (citingMelissa K. Stull, Annotation, Construc-tion and Application of EmergencyTreatment and Active Labor Act (42

USCS § 1395dd), 104 A.L.R. Fed. 166,175 (1991)).

EMTALA allows a plaintiff to recover anydamages she is entitled to under state lawas a result of a hospital’s failure to complywith EMTALA. Tolton v. AmericanBiodyne, Inc., 48 F.3d 937, 944 (6th Cir.1995) (citing 42 U.S.C. § 1395dd(d)(2)(A)(1994)).

¶ 75 EMTALA requires:‘‘In the case of a hospital that has a

hospital emergency department, if anyindividual (whether or not eligible forbenefits under this subchapter) comes tothe emergency department and a re-quest is made on the individual’s behalffor examination or treatment for a medi-cal condition, the hospital must providefor an appropriate medical screening ex-amination within the capability of thehospital’s emergency department, in-cluding ancillary services routinely avail-able to the emergency department, todetermine whether or not an emergencymedical condition (within the meaning ofsubsection (e)(1) of this section) exists.’’42 U.S.C. § 1395dd(a) (2012).

‘‘If any individual * * * comes to a hospi-tal and the hospital determines that theindividual has an emergency medical con-dition,’’ then the hospital must provide‘‘further medical examination and suchtreatment as may be required to stabilizethe medical condition’’ or an appropriatetransfer of that patient after the patienthas been ‘‘stabilized.’’ 42 U.S.C.§ 1395dd(b)(1), (c) (2012).

[13] ¶ 76 As the trial court found, EM-TALA applies to the county. EMTALAprovides in section 1395dd(f) that its provi-sions ‘‘do not preempt any State or locallaw requirement, except to the extent thatthe requirement directly conflicts with arequirement of this section.’’ 42 U.S.C.§ 1395dd(f) (2012). The only court to haveaddressed the question of whether EMTA-


LA preempts sections 6–105 and 6–106 ofthe Tort Immunity Act is the UnitedStates District Court for the NorthernDistrict of Illinois in Williams v. County ofCook, No. 97–C–1069, 1997 WL 428534(N.D.Ill. July 24, 1997). Although deci-sions of the United States District Courtand Court of Appeals are not binding onstate courts, they can provide guidanceand serve as persuasive authority. Peoplev. Criss, 307 Ill.App.3d 888, 900, 241 Ill.Dec. 647, 719 N.E.2d 776 (1999).

¶ 77 In Williams, as here, the countyargued it was immune from EMTALA lia-bility pursuant to sections 6–105 and 6–106of the Tort Immunity Act because it wasbeing sued as a local public entity thatoperates a public medical facility.Williams, 1997 WL 428534, at *5. Thecourt held EMTALA preempts sections 6–105 and 6–106, explaining:

‘‘Under the Illinois Tort Immunity Act,local public entities are not liable forinjury resulting from the failure to makea physical or mental examination, 745ILCS § 10/6–105, the failure to diagnoseor treat, 745 ILCS § 10/6–106, or thefailure to admit a person to a medicalfacility, 745 ILCS § 10/6–109. EMTA-LA preempts state or local law require-ments that directly conflict with its re-quirements. 42 U.S.C. § 1395dd(f).EMTALA requires hospitals to provideall emergency room patients with appro-priate medical screening examinationsand to stabilize any emergency medicalconditions discovered before transfer ordischarge. In direct conflict with EM-TALA, the Illinois Tort Immunity Actpurports to relieve public hospitals fromliability for the failure to screen, exam-ine, treat or admit. The Illinois TortImmunity Act is preempted and doesnot shield Cook County from EMTALAviolations.’’ Williams, 1997 WL 428534,at *5.

¶ 78 We agree that, by immunizing pub-lic hospitals from liability for failure toscreen, examine, treat or admit, sections6–105 and 6–106 directly conflict with EM-TALA’s requirement that all hospitalemergency departments must provide ‘‘anappropriate medical screening examinationwithin the capability of the hospital’semergency department’’ (42 U.S.C.§ 1395dd(a) (2012)) to determine whetheran emergency medical condition exists.Therefore, pursuant to section 1395dd(f) ofEMTALA, EMTALA preempts sections6–105 and 6–106 of the Tort Immunity Actand EMTALA’s requirements apply to thecounty.

¶ 79 Plaintiff argues that the court erredin granting the county’s motion for sum-mary judgment on the basis that there isno evidence to support a violation of EM-TALA. Plaintiff argues a question of factexists regarding whether defendants’ med-ical screening examination was in accor-dance with EMTALA, i.e., whether theirmedical screening examination was ‘‘an ap-propriate medical screening examinationwithin the capability of the hospital’semergency department, including ancillaryservices routinely available to the emer-gency department’’ (42 U.S.C. § 1395dd(a)(2012)), which plaintiff asserts included aneurology or neurosurgical consultationand an MRI test. She argues the courterred in finding her expert witness Dr.Corre’s criticisms only went to the issuesof negligent screening and misdiagnosis‘‘when his testimony was clear as to theDefendants’ violations of EMTALA.’’ Shealso argues a question of fact exists re-garding whether defendants stabilized herprior to discharging her as required byEMTALA.

[14, 15] ¶ 80 We find plaintiff raises nogenuine issue of material fact regardingwhether the Stroger Hospital emergencydepartment gave plaintiff an ‘‘appropriate


medical screening examination’’ underEMTALA. EMTALA does not define theterm other than to state the purpose ofthis examination is to determine whetheror not an emergency medical condition ex-ists. Baber v. Hospital Corp. of America,977 F.2d 872, 879 (1992) (4th Cir. 1992).EMTALA defines ‘‘emergency medicalcondition’’ as, in relevant part:

‘‘a medical condition manifesting itselfby acute symptoms of sufficient severity(including severe pain) such that the ab-sence of immediate medical attentioncould reasonably be expected to resultin—

(i) placing the health of the individual* * * in serious jeopardy,

(ii)serious impairment to bodily func-tions, or

(iii) serious dysfunction of any bodilyorgan or part[.]’’ 42 U.S.C.§ 1395dd(e)(1)(A) (2012).

The goal of ‘‘an appropriate medicalscreening examination’’ under EMTALA,therefore, ‘‘is to determine whether a pa-tient with acute or severe symptoms has alife threatening or serious medical condi-tion.’’ Baber, 977 F.2d at 879. To thatend, EMTALA essentially requires that ahospital develop a screening procedure‘‘designed to identify such critical condi-tions that exist in symptomatic patientsand to apply that screening procedure uni-formly to all patients with similar com-plaints.’’ Id.

[16] ¶ 81 EMTALA does not impose anational standard of care in screening pa-tients and, instead, requires that a hospitalwill provide a screening procedure ‘‘appro-priate’’ and ‘‘within the capability’’ of theparticular hospital’s emergency depart-ment and its available ancillary services.Baber, 977 F.2d at 879–80. Although ahospital may have one general screeningprocedure for all patients, it may tailorthat procedure to each patient’s complaintsor symptoms. Id. at 879 n. 6. ‘‘[S]uch

varying screening procedures would notimpose liability under EMTALA as long asall patients complaining of the same prob-lem or exhibiting the same symptoms re-ceive identical screening procedures.’’ Id.

[17–21] ¶ 82 Application of a hospital’sscreening procedures involves the hospitalpersonnel’s use of medical judgment andtraining to assess a patient’s signs andsymptoms to determine whether an emer-gency medical condition exists. Baber, 977F.2d at 879. EMTALA does not, however,‘‘guarantee that the emergency personnelwill correctly diagnose a patient’s conditionas a result of this screening.’’ Id. EMTA-LA is not a federal malpractice statute.Repp v. Anadarko Municipal Hospital, 43F.3d 519, 522 (10th Cir.1994). It was in-tended to address patient dumping andguarantee that all patients receive an ade-quate first response to a medical crisis andensure that each is accorded the samelevel of treatment regularly provided topatients in similar medical circumstances,not to guarantee that they will be correctlydiagnosed ‘‘or even to ensure that theyreceive adequate care.’’ Baber, 977 F.2dat 880; Gatewood v. Washington Health-care Corp., 933 F.2d 1037, 1041 (D.C.Cir.1991). ‘‘Thus, what constitutes an ‘appro-priate’ screening is properly determinednot by reference to particular outcomes,but instead by reference to a hospital’sstandard screening procedures.’’ Gate-wood, 933 F.2d at 1041; see also Repp, 43F.3d at 522. A hospital provides ‘‘appro-priate medical screening’’ under EMTALAwhen it follows its standard emergencyroom screening procedures, applying itsstandard procedure uniformly to all pa-tients in similar medical circumstances.Repp, 43 F.3d at 522; Baber, 977 F.2d at881; Gatewood, 933 F.2d at 1041. Al-though a hospital violates EMTALA whenit does not follow its own standard policies,‘‘[m]ere de minimus variations’’ or ‘‘slight


deviation’’ from the hospital’s standardprocedures do not amount to a violation ofhospital policy. Repp, 43 F.3d at 523.

[22, 23] ¶ 83 It is uncontested that de-fendants performed a medical screeningexamination on plaintiff when she present-ed to the Stroger Hospital emergency de-partment. Plaintiffs’ experts Drs. Uptonand Corre consistently testified, and heremergency department medical recordshows, that the emergency department,through Drs. Bishof and Bankoff, mademultiple physical examinations and obser-vations of plaintiff and employed X-rays, aCAT scan, pain medication and a musclerelaxant in an effort to determine whatwas wrong with her. The fact that, inretrospect, the examinations might havebeen incomplete or resulted in a misdiag-nosis does not determine whether a medi-cal screening examination satisfies EM-TALA. EMTALA’s requirement for anappropriate medical screening examina-tion is ‘‘ ‘not designed to redress an incor-rect diagnosis by a hospital; instead, it ismerely an entitlement to receive the sametreatment that is accorded to others simi-larly situated.’ ’’ Baber, 977 F.2d at 880(quoting Jones v. Wake County HospitalSystem, Inc., 786 F.Supp. 538, 544(E.D.N.C.1991)). A hospital satisfies EM-TALA’s screening requirement ‘‘if itsstandard medical screening procedure isapplied uniformly to all patients in similarmedical circumstances.’’ Baber, 977 F.2dat 881. Therefore, in order to show thatthe screening examination or treatmentshe received at Stroger Hospital violatedEMTALA, plaintiff must show that thehospital did not comply with its own stan-dard screening procedure or that it treat-ed her differently from similarly situatedpatients. She makes no such showinghere.

¶ 84 First, in her brief on appeal, plain-tiff does not argue, let alone show, that shewas examined or treated any differently

than similarly situated patients. Second,the record does not support plaintiff’s as-sertion at oral argument that Dr. Bankoffadmitted in his discovery deposition that,although he usually performed a neurologi-cal examination on patients such as plain-tiff, he did not perform such an examina-tion on plaintiff. Plaintiff cited to pages2660–61 of the record, but in those pages,Dr. Bankoff testified that he did do hisusual neurologic examination on plaintiff.He first explained that he did not remem-ber plaintiff, did not remember examiningher and could only testify regarding whathe had written in plaintiff’s medical record.Then, on page 2660 of the record, whenasked how he had determined that plaintiffhad a ‘‘lack of numbness’’ as he had notedin her medical record, he stated ‘‘I did aneurologic exam.’’ He explained that‘‘[c]ustom and practice for me on any pa-tient in a neurologic exam would include asensory evaluation’’ and ‘‘I documented a‘normal exam’ [in the record], that wouldindicate a normal neurologic exam.’’ Heacknowledged that he had not documented‘‘neuro normal’’ or the particulars of hisexam in plaintiff’s medical record, only‘‘normal exam’’ but testified that, had hedetermined ‘‘sensory abnormalities,’’ he‘‘wouldn’t have written a normal exam.’’Taken together, Dr. Bankoff’s testimonywas that he usually performed a neurologi-cal examination including a sensory evalua-tion on patients such as plaintiff and thathe did perform such an examination onplaintiff here.

¶ 85 Third, although plaintiff argues thatthe court improperly disregarded Dr.Corre’s testimony regarding whetherthere was an appropriate screening exami-nation under EMTALA, DR. Corre’s testi-mony does not raise any questions of factregarding whether the screening was ap-propriate under EMTALA. Dr. Corretestified at length regarding how the inad-equacies of the screening examination giv-


en to plaintiff and defendants’ failure toimmobilize and stabilize her spine, orderan MRI and consult with spine expertsviolated both the standard of care andEMTALA. However, he did not testifythat the medical screening examination ac-corded to plaintiff was different than themedical screening examination the emer-gency department at Stroger Hospitalwould provide for any other patient pre-senting with the same complaints, signsand symptoms. Nor did he testify thatdefendants violated Stroger Hospital’s ownstandard medical screening policy or thatthey deviated from the hospital’s customand practice in treating emergency roompatients with similar complaints and symp-toms. All of Dr. Corre’s EMTALA opin-ions were based on his professional opinionof what the hospital should have done andnot on what it usually did in similar cir-cumstances or was required by do by itsown policies.

[24] ¶ 86 EMTALA ‘‘ ‘is neither a mal-practice nor a negligence statute.’ ’’ Repp,43 F.3d at 522 (quoting Urban v. King, No.93–3331, 1994 WL 617521, at *2 (10th Cir.Nov.8, 1994)). Thus, while Dr. Corre’sopinion and testimony may create an issuewith regard to whether Stroger Hospital’sexamination, treatment and misdiagnosisof plaintiff deviated from medical stan-dards of care, it does not create a materialquestion of fact as to whether the hospitalemergency department personnel violatedEMTALA by failing to provide an ‘‘appro-priate’’ medical examination.13 Questionsregarding whether hospital personnelproperly diagnosed or treated a patientsare to be resolved under state negligenceand medical malpractice theories of recov-ery, not EMTALA. Baber, 977 F.2d at880.

¶ 87 Pointing to Stroger Hospital’seight-page policy on EMTALA, plaintiffargues that she provided evidence that thescreening examination performed on herviolated the policy. The hospital’s policyquotes much of EMTALA verbatim anddefines and explains the EMTALA termsand requirements in detail. In a sectionlabeled ‘‘procedure,’’ the policy sets forththe steps to be followed when a patientpresents to the emergency room. In thefirst step, ‘‘Medical Screening,’’ the policyrequires that ‘‘[a]ny person who comes tothe emergency department requesting ex-amination or treatment of a medical condi-tion (or where such a request is made ontheir behalf) shall receive a MedicalScreening.’’ It provides that, ‘‘[o]nce theMedical Screening is completed and thereis a determination the patient does nothave an Emergency Medical Condition thepatient may be treated, discharged ortransferred as appropriate for the theirmedical condition’’ and, ‘‘[i]f the patienthas an emergency medical condition, thepatient is to * * * receive further exami-nation and treatment as required to Stabi-lize their medical condition; or * * * betransferred.’’ (Emphases in original.)

¶ 88 EMTALA does not define ‘‘medicalscreening’’ but the hospital’s EMTALApolicy does, as follows:

‘‘ ‘Medical Screening’ means the ap-propriate process (examination and eval-uation of the patient) used by a QualifiedMedical Person within the capability ofthe hospital’s emergency department(services and staff) including ancillaryservices routinely available to the emer-gency department to determine whetheror not the patient has an EmergencyMedical Condition.

13. The testimony of plaintiff’s other expertwitness, Dr. Upton, is similarly deficient. Al-though Dr. Upton found the hospital’s medi-cal screening examination of plaintiff to be

inadequate, he did not state this opinion inthe context of EMTALA and, in fact, made noreference to EMTALA or Stroger Hospital’spolicies at all.


Medical Screening is a process that isreasonably calculated to determinewhether an Emergency Medical Condi-tion exists and represents the use of aspectrum of activities and personnel in-dicated by the needs of the particularpatient. The Medical Screening for apatient is to be consistent with that pro-vided to other patients with similar med-ical conditions. A Medical Screeningalso includes documentation on Emer-gency Department (‘ED’) log, triage andED records of the above as well as finalpatient disposition.’’

In a section of the policy titled ‘‘Requestsfor Medical Treatment at Bureau Hospi-tals,’’ it is provided that ‘‘the MedicalScreening is a process engaged in until anEmergency Medical Condition has beendiagnosed or ruled out.’’

¶ 89 As noted above, plaintiff presentsno testimony from her expert witnessesstating that defendants’ medical screeningexamination and treatment of plaintiff didnot comply with the hospital’s EMTALApolicy. Instead, she cites to the policy’sprovisions providing that (a) to ‘‘stabilize’’a person with an emergency conditionmeans, in part, to provide such medicaltreatment of the condition as may be nec-essary to assure, within reasonable medi-cal probability, that no material deteriora-tion of the condition is likely to result fromor occur during the transfer of the patientand that transfer includes discharge of apatient and (b) medical screening is a pro-cess engaged in until an emergency medi-cal condition has been diagnosed or ruledout. She argues that defendants failed toeither diagnose or rule out an emergency

medical condition and, therefore, they vio-lated their own policy on EMTALA, thuspresenting a question of fact precludingentry of summary judgment to defendants.

¶ 90 Plaintiff appears to argue that, un-less and until Stroger Hospitals’ emergen-cy department personnel memorialize insome fashion that they have (a) providedsuch medical treatment to assure, withinreasonable medical probability, that nomaterial deterioration of the condition islikely to result from or occur during thetransfer or discharge and (b) diagnosed orruled out that a patient suffers from anemergency condition, a question of factexists regarding whether the departmentdid indeed diagnose or rule out an emer-gency condition as required by the policy.There is no support for this argument.

¶ 91 The hospital policy’s definition of‘‘stabilize’’ is the same as that set forth inEMTALA.14 Neither the policy nor EM-TALA states a requirement that emer-gency department personnel must memo-rialize, whether in the patient’s record orverbally or by any other means, that theyhave provided the medical treatment nec-essary to assure, with reasonable medicalprobability, that the patient will not likelysuffer material deterioration of her condi-tion from or during transfer or discharge.Neither the policy nor EMTALA requirethat a determination regarding whetheran emergency medical condition has beendiagnosed or ruled out must be memorial-ized.

¶ 92 All that is required under EMTA-LA is that a decision regarding the exis-tence of an emergency medical condition

14. EMTALA defines ‘‘to stabilize’’ as ‘‘to pro-vide such medical treatment of the conditionas may be necessary to assure, within reason-able medical probability, that no material de-terioration of the condition is likely to resultfrom or occur during the transfer of the indi-vidual from a facility.’’ 42 U.S.C.§ 1395dd(e)(3)(A) (2012). It defines ‘‘stabi-

lized’’ as ‘‘no material deterioration of thecondition is likely, within reasonable medicalprobability, to result from or occur during thetransfer of the individual from a facility.’’ 42U.S.C. § 1395dd(e)(3)(B) (2012). ‘‘Transfer’’includes the discharge of a patient. 42 U.S.C.§ 1395dd(e)(4) (2012).


be made after an appropriate medicalscreening examination, ‘‘[n]othing more,nothing less.’’ Collins v. DePaul Hospital,963 F.2d 303, 306–07 (10th Cir.1992).Stroger Hospital’s policy provides thesame. It is obvious here that, after itsscreening examination, the hospital deter-mined that an emergency medical condi-tion did not exist. In asserting that thehospital misdiagnosed her by failing to findshe had an emergency medical condition,plaintiff admits that it decided an emer-gency medical condition did not exist.Further, her testimony that both Dr. Ban-koff and the ‘‘second male doctor’’ did notbelieve her, told her there was nothingwrong with her, told her she was lying anddischarged her with instructions to takeMotrin and see her internist shows that, incompliance with the hospital’s EMTALApolicy, the doctors in the emergency de-partment reached a determination regard-ing whether plaintiff had an emergencymedical condition by ruling out the condi-tion.

[25–27] ¶ 93 With regard to plaintiff’sassertion that Stroger Hospital violatedEMTALA when it failed to stabilize herprior to discharge, her assertion that thehospital did not diagnose her with anemergency medical condition precludesfinding the hospital liable for failure tostabilize plaintiff prior to her discharge.EMTALA requires that, if a hospital de-termines that an emergency departmentpatient has an emergency medical condi-tion, it must provide ‘‘further medical ex-amination and such treatment as may berequired to stabilize the medical condition’’or an appropriate transfer (or discharge)of that patient after the patient has been‘‘stabilized.’’ 42 U.S.C. § 1395dd(b)(1), (c)(2012). The requirement that a hospitalstabilize a patient prior to transfer or dis-charge is ‘‘ ‘triggered only after a hospitaldetermines that an individual has an emer-gency medical condition.’ ’’ Baber, 977F.2d. at 883 (quoting Gatewood, 933 F.2d

at 1041). ‘‘[U]nless the hospital actuallydetermines that the patient suffers froman emergency medical condition,’’ the re-quirement does not apply. Baber, 977F.2d at 883; also Barrios v. Sherman Hos-pital, No. 06 C 2853, 2009 WL 935750, at*4 (N.D.Ill. Apr. 3, 2009).

[28] ¶ 94 Plaintiff has not shown thatStroger Hospital had actual knowledgethat she had an emergency medical condi-tion at the time it discharged her. It maybe that, had Drs. Bishof and Bankoff per-formed the medical screening examinationand testing to Drs. Corre and Upton’ssatisfaction, they would have determinedthat plaintiff did, in fact, have an emergen-cy medical condition requiring stabiliza-tion. Nevertheless, ‘‘[a]nalysis by hind-sight is not sufficient to impose liabilityunder EMTALA.’’ Baber, 977 F.2d at 883.Plaintiff’s own argument and testimonyshow that the doctors in the emergencydepartment determined that she did nothave an emergency medical condition.Therefore, as plaintiff has not shown thatthe hospital knew she had an emergencycondition, the hospital cannot be liable forany failure to provide stabilizing treatmentunder EMTALA. Id. at 884; Barrios,2009 WL 935750, at *4; Anadumaka v.Edgewater Operating Co., 823 F.Supp. 507,510 (N.D.Ill.1993).

¶ 95 The court did not err in findingplaintiff failed to show that the countyviolated EMTALA in its medical examina-tion of plaintiff or its failure to stabilizeher prior to discharge. We affirm the trialcourt’s grant of summary judgment to thecounty on count V of the fifth amendedcomplaint.

¶ 96 CONCLUSION

¶ 97 For the reasons stated above, weaffirm the orders of the trial court grant-ing summary judgment to Dr. Bishof oncounts I and II of the fifth amended com-


plaint, to Dr. Bankoff on counts III and IVof the fifth amended complaint and to thecounty on the counts I through V of thefifth amended complaint.

¶ 98 Affirmed.

Justices McBRIDE and GORDONconcurred in the judgment and opinion.

,

2015 IL App (2d) 140292

392 Ill.Dec. 857

BITUMINOUS CASUALTYCORPORATION, Plaintiff–Appellant,

v.

PLANO MOLDING COMPANY,Defendant–Appellee.

No. 2–14–0292.

Appellate Court of Illinois,Second District.

March 26, 2015.

Background: Following federal court de-termination that shippers’ only causes ofaction against buyer of steel injectionmolds, which broke through floor of con-tainer during shipping and caused trainderailment, stemmed from contractual ob-ligations under bill of lading, buyer’s com-mercial general liability (CGL) insurersought declaratory judgment as to whetherinsurance policy exclusion applied, andbuyer filed counterclaim for declaratoryrelief. The Circuit Court, Kendall County,Robert P. Pilmer, J., granted buyer’s mo-tion for summary judgment, and insurerappealed.

Holding: The Appellate Court, Zenoff, J.,held that bill of lading was not an ‘insuredcontract’ within meaning of exception toCGL exclusion.

Reversed.

1. Indemnity O31(1)

An indemnity agreement is a contractsubject to contract interpretation rules.

2. Indemnity O31(5)

Indemnity contracts are strictly con-strued.

3. Insurance O2278(8)

Bill of lading, which provided thatbuyer of steel injection molds, which ulti-mately broke through container floor andcaused train derailment, ‘‘warrants thatthe stowage and seals of the containers aresafe and proper and suitable for handlingand carriage and indemnifies Carrier forany injury, loss or damage caused bybreach of this warranty,’’ was not an ‘‘in-sured contract’’ within meaning of com-mercial general liability (CGL) insurancepolicy’s insured contracts exception to ex-clusion for coverage for property damage‘‘for which the insured is obligated to paydamages by reason of the assumption ofliability in a contract or agreement,’’ asunder the bill of lading, buyer was liableonly for its own breach of warranty, anddid not assume liability for shippers’ negli-gence.

See publication Words and Phras-es for other judicial constructionsand definitions.

4. Indemnity O30(1), 31(6)

It is generally held that an indemnitycontract will not be construed as indemni-fying the indemnitee against its own negli-gence unless such a construction is re-quired by the clear and explicit languageof the contract, or such intention is ex-pressed in unequivocal terms.

Thomas B. Orlando, Matthew S. Ponzi,and Robert T. Boylan, all of Foran, Glen-

624 ill. 33 north eastern reporter, 3d series

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